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PROJET DE LOI

ENTITLED

The Regulation of Fiduciaries,

Administration Businesses and Company Directors, etc

(Bailiwick of Guernsey) Law, 20002018

ARRANGEMENT OF SECTIONS

PART I REGULATION OF FIDUCIARIES, ADMINISTRATION BUSINESSES & COMPANY

DIRECTORS, ETC

Prohibition of unlicensed business 1. Prohibition of unlicensed business. 2. Regulated activities. 3. Exempted activities.

Licensing 4. Categories of fiduciary licences. 5. Applications for fiduciary licences. 6. Grant or refusal of fiduciary licences. 7. Fees for fiduciary licences.regulations and recovery of fees. 8. Revocation of fiduciary licences. 98. Conditions of fiduciary licences. 910. Notice of refusal, etc, of fiduciary licences. 11. Surrender of fiduciary licences.

Principles of conduct 10. Principles of conduct for licensed fiduciaries.

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PART II

SUPERVISION OF LICENSED FIDUCIARIES Directions

11. Power to issue directions.

Supervised roles

12. Directions to fiduciaries.Supervised roles.

Information as to fiduciaries 13. Publication of names ofList of, and information as to, licensed fiduciaries.

Objections to controllers Notification of holding of vetted and approved supervised roles, etc

and acquisition of voting power 14. Notification of and objection to controllersholders of approved supervised

roles. 15. Notification of and objection to holders of vetted supervised roles. 16. Notification of change of holder of supervised role. 17. Notification of acquisition of significant shareholding.

PART III REPRESENTATIONS, DECISIONS AND APPEALS

15. Objection to existing controllers. 16. Contraventions by controllers. 17. Restrictions on sale of shares.

Prohibition orders 17A. Power to make prohibition orders. 17B. List of prohibition orders. 17C. Right to make representations as to prohibition orders.

Representations, notice of Reasons for decisions and appeals

18. Representations concerning proposed decisions of Commission.

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19. Notice of decisions of Commission. 20. Disclosure of reasons for decisions of Commission. 21. Appeals to Royal Court against decisions of Commission. 22. Appeals from Royal Court to Court of Appeal. 23. Restriction on successive challenges.

Advertising for business, etc 24. 20. Control of advertising.

Notification of certain matters 21. Notification of change of director, etc. 22. Notification of acquisition of significant shareholding.

Obtaining of information

23. PowerPowers to obtain information 25. Persons to whom section 26 applies. and Power to require information and production of documents., etc. 24. 27. Investigations by inspectors.Appointment of skilled persons. 25. Investigation of suspected offences. 26. Power of Bailiff to grant warrant. 27. Powers conferred by Bailiff's warrant. 28. Falsification, etc, of documents during investigation. 29. Retention of documents.

Accounts and auditors 29. 30. Rules as to accounts, etc. 31. 30. Notification in respect of auditors. 32. 31. Communications to Commission by auditors, etc., to Commission. 33. Power to request meetings with auditors, actuaries, etc.

Making of Rulesrules, codes and guidance 31A. 34. Rules of the Commission. 31B35. Particular matters that may be covered by rules. 36. Rules as to annual return.

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General provisions as to rules 31C. Making, publication and effect of contravention of rules.

Miscellaneous powers of Commission

32. Repayment of monies from unauthorised business. 33. Injunctions to restrain unlawful business, etc. 34. Winding-up on application of Commission. 35. 37. Codes of practice and guidance..

PART II HOLDING OUT, OFFERING TO CARRY ON BUSINESS,

DESCRIPTIONS & NAMES 36. Restrictions on use of certain descriptions names. 37. Offering to carry on business. 38. Permission to use certain descriptions or names. 39. Commission may object to certain names. 40. Offences in relation to objections to names. 41. Incorporation and change of name of companies. 42. Applications by Commission for change of company name.

PART III PART IV

DISCLOSURE OF INFORMATION 4338. Restrictions on disclosure of information. 4439. Cases where disclosure is permitted. 4540. Information supplied to Commission by relevant overseassupervisory

authority. 41. Royal Court to take Commission's undertakings into account.

PART V

PART IV OFFENCES AND PENALTIES

42. 46. False or misleading information. 47. Penalties. 43. 48. Criminal liability of directors, abettors, etc. 4944. Criminal proceedings against unincorporated bodies. 45. 50. Defence of due diligence.

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46. 51. Jurisdiction.

PART V

PART VI GENERAL PROVISIONS

MiscellaneousMISCELLANEOUS AND SUPPLEMENTARY

47. Commission to have regard to guidance, etc, under FSC Law and other

matters. 48. Service of notices and documents. 49. Documents to be submitted in electronic form and by electronic means. 50. 52. Verification of information. 51. 53. Service of notices. 54. Evidence.

Liability of States, Commission, etc 52. Exclusion of Liability 55. General provisions as to receivers. 56. Regulations as to annual return. 57. Limitation of liability.

Ordinances, regulations and rules, etc 53. Ordinances, regulations, rules, codes and guidance, etc - general. 54. Regulations: consultation with Committees and Commission and laying

before the States. 55. Publication of regulations, rules, codes and guidance, etc. 56. Making and effect of contravention of rules. 57. Regulations and rules are statutory instruments. 58. Power to adapt rules, codes and guidance, etc, under this Law.

Interpretation., repeals, commencement, etc 59. Transitional provisionsInterpretation. 60. Amendments. Savings and transitional provisions. 61. General provisions as to subordinate legislation. 61. 62Conversion of full fiduciary licence into secondary fiduciary licence. 62. Repeals and amendments.

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63. Citation and commencement. SCHEDULE 1 Minimum criteria for licensing. SCHEDULE 2 Meaning of "holding company" and "subsidiary company".

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PROJET DE LOI

ENTITLED

The Regulation of Fiduciaries,

Administration Businesses and Company Directors, etc

(Bailiwick of Guernsey) Law, 20002018

THE STATES, in pursuance of their Resolutions of the 1st June, 200030th

October, 2015a and the 29th27th November, 20002015b, have approved the following

provisions which, subject to the Sanction of Her Most Excellent Majesty in Council,

shall have force of law in the Bailiwick of Guernsey.

PART I

REGULATION OF FIDUCIARIES, ADMINISTRATION BUSINESSES & COMPANY

DIRECTORS, ETC

Prohibition of unlicensed business

Prohibition of unlicensed business.

1. (1) A person other than a Bailiwick companybody shall not carry

on, offer to carry on, or hold himself out as being willing to carry on, by way of

business, in or from within the Bailiwick, any of the activities described in section 2

a Article VIV of Billet d'État No. XIIXVIII of 20002015. b Article IVIII of Billet d'État No. XXIIIXX of 20002015.

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(hereinafter called "("regulated activities") except under the authority of and in

accordance with the conditions of a licence granted by the Commission under section

6 (hereinafter called a "fiduciary licence").

(2) A Bailiwick companybody shall not carry on, offer to carry on,

or hold itself out as being willing to carry on, by way of business, in or from within

any place whatsoever, any regulated activities except under the authority of and in

accordance with the conditions of a fiduciary licence.

(3) A person who contravenes any provision of subsection (1) or (2)

is guilty of an offence.

(4) The fact that a regulated activity is carried on in contravention

of this section shalldoes not of itself affect any civil liability arising in respect of the

carrying on of the activity.

Regulated activities.

2. (1) Subject to the provisions of section 3, regulated activities are the

following –

(a) the formation, management or administration of trusts,

and the provision of advice in relation to the formation,

management or administration of trusts, including

(without limitation) –

(i) acting as corporate or individual trustee,

enforcer or protector for trusts,

(ii) the provision to trusts of corporate or individual

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trustees, enforcers or protectors,

(b) company or corporate administration including

(without limitation) –

(i) the formation, management or administration of

companies, partnerships or other

unincorporated bodies, and the provision of

advice in relation to the formation, management

or administration of companies, partnerships or

other unincorporated bodies, whether

incorporated or established in or under the laws

of the Bailiwick or elsewhere,

(ii) the provision to any such companies,

partnerships or other unincorporated bodies of –

(A) corporate or individual directors,

partners or, in the case of a limited

liability partnership, members,

(B) individuals or companies to act as

company or corporate secretary or in any

other capacity as officer of a company,

partnership or other unincorporated

body other than a director, or other role

referred to in item (A),

(C) nominee services, including (without

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limitation) acting as or providing

nominee shareholders,

(D) registered offices or accommodation

addresses (the expression "address" in

this subparagraph including any postal,

telecommunication or electronic

address),

(iii) acting as director of any company or

unincorporated body, or as partner of any

partnership, or as member of any limited

liability partnership, whether incorporated,

registered or established in or under the laws of

the Bailiwick or elsewhere,

(c) the provision of executorship services including

(without limitation) acting as, or accepting an

appointment made by will as, an executor of a will or

administrator of an estate,

(d) the formation, management or administration of

foundations, and the provision of advice in relation to

the formation, management or administration of

foundations, including (without limitation) –

(i) acting as corporate or individual foundation

official,

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(ii) the provision to foundations of corporate or

individual foundation officials.,

In this paragraph –

"foundation" means –

(A) a foundation established under the

Foundations (Guernsey) Law, 2012 or

(B) an equivalent or similar body created or

established under the law of another

jurisdiction (and howsoever named),

and

"foundation official" means –

(A) in relation to a foundation established

under the Foundations (Guernsey) Law,

2012, a foundation official within the

meaning of that Law, and

(B) in relation to an equivalent or similar

body created or established under the

law of another jurisdiction, a person with

functions corresponding to those of a

foundation official described in item (A),

(e) the formation, management or administration of

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pension schemes or gratuity schemes, and the provision

of advice in relation to the formation, management or

administration of pension schemes or gratuity schemes.

In this paragraph -

"gratuity scheme" means a scheme (not being a fund, contract, scheme

or trust described in item (A), (B) or (C) of the definition of "pension scheme"

below) which is established in connection with the carrying on of business or

the exercise of functions and which has, for its sole or main purpose, the

purpose of the provision of retirement benefits by means of the provision of a

lump sum or other payments for persons employed in or in connection with

the business or the exercise of the functions (or their spouses, children,

dependants or other persons in respect of them), at a time or occasion

(including, without limitation, the expiration of their term of service), or on the

occurrence of an event or circumstance, or on compliance with requirements

or conditions, specified in the rules of the scheme,

"Income Tax Law" means the Income Tax

(Guernsey) Law, 1975,

"pension scheme" means any fund, contract,

scheme or trust -

(A) approved by the Director of Income Tax

under section 150, 154A, 157A or 157E of

the Income Tax Law,

(B) established in Guernsey and recognised

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by the Director of Income Tax as being

exempt from tax under section 40(o) of

the Income Tax Law,

(C) any annuity or lump sum payable

pursuant to which is recognised by the

Director of Income Tax as being exempt

from tax under section 40(ee) of the

Income Tax Law.

(2) The Policy Councilmay, after consultation with the

Commission, and with the agreement of the Policy and Financeand Resources

Committee of the States of Alderney and the Policy and Performance ("the Committee

of the Chief Pleas of Sark,") may by regulation amend subsection (1) by adding any

activity to it or removing any activity from it.

(3) Without prejudice to the generality of subsection (2),

regulations adding any activity to subsection (1) may provide for the taking into

account, as the activities of a person, of the activities of any person connected with

him in such manner as may be specified in the regulations.

Exempted activities.

3. (1) The following activities are exempted from the operation of

section 21 and accordingly are not regulated activitiessubject to licensing under the

provisions of this Law –

(a) acting as trustee or custodian of a collective investment

scheme authorised or registered by the Commission

under [section 8] of the Protection of Investors

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(Bailiwick of Guernsey) Law, 1987c,2018d (the

"Protection of Investors Law"),

(b) acting as a director of a company which has an

established place of business within the Bailiwick

provided that no services consisting of or comprising a

regulated activity are supplied to the company by the

director (other than acting as director),

(c) acting as a director of a company which is quoted on a

stock exchange recognised by the Commission for the

purposes of this paragraph,

(d) acting as a director of a company where more than half

in nominal value of the equity share capital of that

company is held by –

(i) the director, as beneficial owner,

(ii) any close relative of the director, as beneficial

owner, or

(iii) the trustees of a trust of which a person

mentioned in subparagraph (i) or (ii) is a

beneficiary,

c Ordres en Conseil Vol. XXX, pp. 281 and 243; Recueil d'Ordonnances Tome XXIV, p. 324; and No. XII of 1995. d Approved by the States of Deliberation on the **, 2018.

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(e) acting as a director of a supervised companybody,

(f) acting as a director of a company which is a subsidiary

of, or wholly beneficially owned by, a company or body

described in paragraph (b), (c), (d) or), (e) or (l),

(g) acting, where the person so acting is an individual, as a

director of not more than six companies, being

directorships which are not the subject of an exemption

contained in any other paragraph of this subsection,

except in any case where the Commission disapplies the

exemption contained in this paragraph in respect of any

person on the grounds that, having regard to the criteria of

Schedule 1, the Commission is not satisfied that he is a fit and

proper person to be or to become a director of a company and,

where the Commission decides so to disapply the

exemption contained in this paragraph, it shall serve

notice to that effect on the person concerned, giving

particulars of the right of appeal set out in section 19,

(h) acting as bookkeeper or company secretary of a

companybody which has an established place of

business within the Bailiwick provided that no services

consisting of or comprising a regulated activity are

supplied to the companybody by the person concerned

(other than acting as bookkeeper or company secretary),

(i) acting as a partner of a partnership which has an

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regulated activity are supplied to the partnership by the

partner (other than acting as partner),

(j) acting as a partner of a partnership –

(j) acting as a foundation official of a foundation which has

an established place of business within the Bailiwick


regulated activity are supplied to the foundation by the

foundation official (other than acting as foundation

official),

(k) acting as a member of a limited liability partnership

which has an established place of business within the

Bailiwick provided that no services consisting of or

comprising a regulated activity are supplied to the

limited liability partnership by the member (other than

acting as member),

(l) acting as a partner of a partnership or member of a

limited liability partnership –

(i) which holds a licence to carry on controlled

investment business under [section 4] of the

Protection of Investors (Bailiwick of Guernsey)

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Law, 1987eLaw or which is exempt from

licensing under [section 29] of that Law, or

(ii) which holds an authorisation or registration

under [section 8] of that Law,

(km) acting as a limited partner in a limited partnership,

(l

(n) acting as a member in a limited liability partnership, but

only where the members’ agreement provides, as

referenced in section 14(3)(b) of the Limited Liability

Partnerships (Guernsey) Law, 2014, that the member

may not take part in the conduct or management of the

partnership,

(o) acting as bookkeeper of a partnership which has an



regulated activity are supplied to the partnership by the

person concerned (other than acting as bookkeeper),

(mp) the acceptance of money on terms under which the

money –

(i) is paid by way of advance or part payment

under a contract for the sale, hire or other

e Ordres en Conseil Vol. XXX, p. 281.

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provision of property or services and is

repayable in the event of the property or services

not in fact being sold, hired or otherwise

provided,

(ii) is paid by way of security for the performance of

a contract or by way of security in respect of loss

which may result from the non-performance of

a contract, or

(iii) without prejudice to subparagraph (ii), is paid

by way of security for the delivery up or return

of any property, whether in a particular state of

repair of otherwise,

(nq) acting as guardian of a minor or person under legal

disability where the appointment is made by, and where

the dischargeperformance of the functions of guardian

is subject to the supervision of, the Royal Court, the

Court of Alderney or the Court of the Seneschal,

(or) acting as executor of the will of, or administrator of the

estate of, a person who was resident or domiciled in the

Bailiwick at the time of the execution of the will or at the

time of death, provided that the person so acting is a

lawyer,

(ps) acting as trustee of testamentary trusts created by the

will of a person who was resident or domiciled in the

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Bailiwick at the time of the execution of the will or at the

time of death, provided that the person so acting is a

lawyer,

(qt) the provision of advice or the drafting of documents by

a lawyer, accountant or actuary in the ordinary course

of carrying on the profession of lawyer, accountant or

(as the case may be) actuary,

(ru) the drafting of minutes of meetings by a lawyer,

accountant or actuary,

(sv) the preparation and auditing of accounts,

(tw) activities undertaken in the course of a profession or

business –

(i) which are undertaken without separate or

additional remuneration (whether from the

client concerned or from a third party), and

(ii) which are incidental to the carrying on of that

profession or business,

provided that the person carrying on the profession or

business does not hold himself out as undertaking those

activities,

(ux) the activities of the Ecclesiastical Court and Registrar

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thereof in relation to the granting of probate and letters

of administration,

(vy) the provision of accommodation addresses (within the

meaning of section 2(1)(b)(ii)(D)) –

(i) by a person -

(A) holding a licence of the States of

Guernsey Competition and Regulatory

Authority granted under Part I of the

Telecommunications Board or the

States(Bailiwick of Guernsey) Law, 2001

or exempted from the requirement to

hold such a licence under section 1(2) or

(3) of that Law, or

(B) holding a licence of the Guernsey

Competition and Regulatory Authority

granted under Part I of the Post Office

Board (or any company succeeding to the

undertaking of either of those Boards) or

(Bailiwick of Guernsey) Law, 2001 or

exempted from the requirement to hold

such a licence under section 1(2) or (3A)

of that Law,

(ii) by an internet or telecommunications service

provider, or

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(iiiii) where the address is provided solely for the

service of process or the service of notice under

a contract,

(wz) any activity carried on under the authority of and in

accordance with the conditions of a licence, registration

or authorisation granted by the Commission under any

of the regulatory Laws,2

(x(aa) the creation, use or carrying on of an ancillary vehicle,

or activity in respect of an ancillary vehicle, when

notified to the Commission in accordance with rules

made by the Commission under [section 20A] of the

Protection of Investors Law, but subject to the

provisions of the rules,

(ab) the following activities when carried on by a

registeredlicensed insurance intermediary within the

meaning of section 49A of [Schedule 3] to the Insurance

Business (Guernsey)Managers and Intermediaries

Law, 1986f –

(i) the formation of, and the provision of advice in

relation to the formation of, a retirement annuity

scheme or retirement annuity trust scheme

f Ordres en Conseil Vol. XXIX, p. 214; section 49A was inserted by Order in Council No. II of 1998.

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approved by the Director of Income Tax under

the provisions of Part XIII of the Income Tax

(Guernsey) Law, 1975g, or

(ii) the formation of, and the provision of advice in

relation to the formation of, a pension scheme (in

each case within the meaning of section 2(1)(e))

oror gratuity scheme or a trust of a life assurance

policy,

(yac) any particular activity, transaction or appointment

specifically exempted from the operation of section 21

by written instrument of the Commission; and for the

purposes of this paragraph –

(i) an application for such an exemption shall be

made in such form and manner, and shall be

accompanied by such information and

documents, as the Commission may require,

(ii) the application shall be accompanied by such fee

as may be prescribed by regulations under

section 7,

(iii) the application may be refused or granted

subject to such conditions as the Commission

g Ordres en Conseil Vol. XXV, p. 124; Vol. XXVIII, p. 278; Vol. XXXII, p. 307; No. IV of 1991; No. VI of 1992; No. VIII of 1993; No. XXV of 1994; No. XXII of 1997.

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may consider necessary or expedient,

(iv) the Commission may at any time after receipt of

the application require the applicant to furnish

such additional information and documents as it

considers necessary or desirable, and

(v) the exemption may be revoked or varied at any

time by the Commission by written notice to the

person to whom it was granted,, and,

(vi) any such variation may include the attachment

of such conditions, or the removal or

modification of such conditions previously

attached, as the Commission may think fit,

(vii) the exemption shall, subject to the provisions of

subparagraph (v), be valid for such period (if

any) as the Commission may determine, and

(viii) if, whether before or after the grant of an

exemption, there is any change of fact or

circumstance, or any change to any of the

information supplied to the Commission by or

on behalf of the applicant or (as the case may be)

the person to whom the exemption was granted

for the purposes of the application or exemption

(whether by virtue of the information becoming

out of date, or being found to be incomplete or

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inaccurate, or otherwise), the applicant or that

person shall inform the Commission of the

change, as soon as practicable after becoming

aware of the change and in any event within a

period of 14 days thereafter (or such other

period as the Commission may determine), and

(ix) a failure to comply with any requirement arising

by virtue of subparagraph (viii) is, without

limitation and without prejudice to any other

provision of this Law or the Enforcement

Powers Law, a ground for the refusal or

revocation of the exemption.

(2) The Policy Council may, after consultation with the

Commission, and with the agreement of the Policy and Finance Committee of the

States of Alderney and the Policy and Performance Committee of the Chief Pleas of

Sark,may by regulation amend subsection (1) –

(a) by adding any exemption to it or removing any

exemption from it,

(b) by removing, relaxing or extending any condition or

restriction set out in it or by imposing any new

condition or restriction.

(3) Regulations under subsection (2) may provide that any

exemption shall be subject to such conditions, restrictions or requirements as may be

specified in the regulations.

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(3A)4) Where circumstances change such that an exemption under this

section in respect of -

(a) a person, or

(b) an activity or transaction carried out or appointment or

position held by him,

is no longer applicable, it is the duty of that person, within a period of 14 days

immediately following the day on which he becomes aware of the change, to give

notice in writing to the Commission of the change of circumstances.

(45) For the avoidance of doubt, an activity which is not exempted

from the operation of section 21 by or under the provisions of this section shall not, by

reason of that fact alone, be deemed to be a regulated activity; and, accordingly, the

question of whether or not that activity is a regulated activity shall be determined

solely by reference to the provisions of section 2.

Licensing

Categories of fiduciary licences.

4. (1) Fiduciary licences granted by the Commission under section 6

shall be of the following categories –

(a) a full fiduciary licence, and

(b) a secondary fiduciary licence, and

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(c) a personal fiduciary licence.

(2) A full fiduciary licence –

(a) may only be granted to a company or other legal person

or a partnership,

(b) may not be granted to a body which has a corporate

director (or a corporate general partner, in the case of a

limited partnership, or corporate member, in the case of

a limited liability partnership),

(c) shall authorise the licensed fiduciary, for the purposes

of this Law and subject to the conditions of the licence

–

(i) to carry on by way of business, in or from within

the Bailiwick, any regulated activities, and

(ii) where the licensed fiduciary is a Bailiwick

companybody, to carry on by way of business,

in or from within any place whatsoever, any

regulated activities, and

(cd) shall authorise any director, manager, partner (or

general partner, in the case of a limited partnership, or

member, in the case of a limited liability partnership) or

employee of the licensed fiduciary, for the purposes of

this Law and subject to the conditions of the licence –

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(ii) where the licensed fiduciary is a Bailiwick

companybody, to carry on by way of business,

in or from within any place whatsoever, any

regulated activities,

provided that he does so only in the course of his duties

as a director, manager, partnerpartner (or general

partner, in the case of a limited partnership, or member,

in the case of a limited liability partnership) or (as the

case may be) employee of the licensed fiduciary.

(3) A secondary fiduciary licence -

(a) may only be granted to a company or other legal person

or a partnership which is a subsidiary of or wholly

beneficially owned by -

(i) the holder of a full fiduciary licence, or

(ii) the holding company of the holder of a full

fiduciary licence,

(b) may be granted to a body which has a corporate director

(or a corporate general partner, in the case of a limited

partnership, or corporate member, in the case of a

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limited liability partnership),

(c) may authorise the licensed fiduciary, for the purposes

of this Law and subject to the conditions of the licence

and subject to the provisions of any rules under section

34 –



(ii) where the licensed fiduciary is a Bailiwick body,

to carry on by way of business, in or from within

any place whatsoever, any regulated activities,

and

(d) may authorise any director, partner (or general partner,

in the case of a limited partnership, or member, in the

case of a limited liability partnership) or employee of the

licensed fiduciary, for the purposes of this Law and

subject to the conditions of the licence –



(ii) where the licensed fiduciary is a Bailiwick body,

to carry on by way of business, in or from within

any place whatsoever, any regulated activities,

provided that he does so only in the course of his duties

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as a director, partner (or general partner, in the case of a

limited partnership, or member, in the case of a limited

liability partnership) or (as the case may be) employee

of the licensed fiduciary.

(34) A personal fiduciary licence –

(a) may only be granted to an individual,

(b) shall authorise the licensed fiduciary, for the purposes

of this Law and subject to the conditions of the licence,

to carry on by way of business, in or from within the

Bailiwick, the following regulated activities –

(i) acting as director of any company or

unincorporated body, or as partner of any

partnership ,(or member, in the case of a limited

liability partnership), whether incorporated,

registered or established in or under the laws of

the Bailiwick or elsewhere,

(ii) acting as trustee (provided that he does not act

as a sole trustee) or as enforcer or protector for

trusts,

(iii) acting as, or accepting an appointment made by

will as, an executor of a will or administrator of

an estate,

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(iv) acting as foundation official for

foundations within the meaning of section

2(1)(d),, but only where the individual is

resident in Guernsey.

Applications for fiduciary licences.

5. (1) A person wishing to obtain a fiduciary licence shall apply in

that behalf to the Commission.

(2) The application shall state whether the applicant wishes to

obtain a full fiduciary licence, a secondary fiduciary licence or a personal fiduciary

licence.

(3) The application shall also state in or from within which, if any,

of the islands of the Bailiwick the applicant proposes to carry on a regulated activity.

(4) An application for a fiduciary licence shall be made in such

form and manner as the Commission may require and shall be accompanied by –

(a) a statement of the applicant's proposed regulated

activities,

(b) such other information or documents as the

Commission may reasonably require for the purpose of

determining the application, and

(c) the appropriate fee prescribed by regulations under

section 7,

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provided that where the applicant is already the holder of a fiduciary licence the

Commission may in its absolute discretion waive the requirements of paragraph (a)

and instead require the applicant to provide a statement setting out the extent to which

any statement or, information or document provided by him in connection with a

previous application has changed.

(5) Upon receipt of an application for a fiduciary licence and at any

time thereafter the Commission may by notice in writing require the applicant or any

person who is or is to be a director, controller, manager or partner (or general partner,

in the case of a limited partnership, or member, in the case of a limited liability

partnership) of,the holder of a supervised role in respect of the applicant to provide

such additional information or documents as the Commission may reasonably require

for the purpose of determining the application.

(6) Any information or, statement or other document to be

provided to the Commission under this section shall be in such form as the

Commission may require; and the Commission may by notice in writing require the

applicant or any person mentioned in subsection (5) –

(a) to provide a report, in such form as may be specified in

the notice, by an accountant or other qualified person,

in either case nominated or approved by the

Commission, on such aspects of that information or,

statement or other document as the Commission may

specify,

(b) to attend at such time and place as may be specified in

the notice in order to give an explanation of and to

answer questions relating to any such information,

32

statement, document or report or anything in them.

(7) The Commission's requirements under subsections (4), (5) and

(6) may differ as between different applications.

(8) An application may be withdrawn by notice in writing to the

Commission at any time before it is determined.

(9) An application is deemed to be withdrawn if -

(a) the applicant has failed for -

(i) a period of three months, or

(ii) such longer period as the Commission may have

specified by notice in writing to the applicant,

to provide any statement, information or document

required by the Commission for the purpose of

determining the application,

(b) the Commission has, whether before or after the

expiration of the period specified in paragraph (a),

given written notice to the applicant that a failure to

provide any statement, information or document

described in that paragraph will result in its application

being deemed to be withdrawn under this subsection,

(c) a period of 14 days has expired following the giving of

33

that notice, and

(d) on the date of expiration of the periods specified in

paragraphs (a) and (c) (whichever date is later) -

(i) that notice has not been withdrawn by the

Commission, and

(ii) the statement, information or document in

question has not been provided.

(910) Before deciding whether or not to grant a fiduciary licence the

Commission shall, if the application contains a statement under subsection (3) to the

effect that the applicant proposes to carry on a regulated activity in or from within

Alderney or Sark, consult the Policy and Finance Committee of the States of Alderney

or, as the case may be, the Policy and Performance Committee of the Chief Pleas of

Sark.

Grant or refusal of fiduciary licences.

6. (1) The Commission may, upon receipt of an application for a

fiduciary licence, grant or refuse the application. -

(2) The(a) subject to the provisions of

subsection (2), grant the application and issue a

fiduciary licence to the applicant, or

(b) refuse the application.

(2) Without prejudice to the generality of its powers conferred by

34

subsection (1)(b), the Commission shall not grant an application for a fiduciary licence

unless satisfied that the criteria specified in Schedule 1 (the “minimum criteria for

licensing”) are fulfilled –

(a) in relation to the applicant, and

(b) in the case of an application for a full fiduciary licence

or secondary fiduciary licence, in relation to any person

who is or is to be a director, controller, or partner (the

holder of an approved supervised role or general

partner,vetted supervised role in the case of a limited

partnership, or member, in the case of a limited liability

partnership) or managerrespect of the applicant.

(3) In considering whether or not the minimum criteria specified in

Schedule 1for licensing are so fulfilled, and without limitation, the Commission –

(a) shallmay take into account such written guidance and shall act in accordance

with such written directions(so far as may be given by the Policy and Resources

Committee under section 7 of the Financial Services Commission Law in relation to

regulated activities, andrelevant) –

(b) may take into account –

(i(a) the provisions of any code of practice or guidance issued

under section 3537 of this Law or section 57 or 120 of the

Enforcement Powers Law, and

(iib) any matter to which it may have regard under the

35

provisions of section 828 or 29 of the Enforcement

Powers Law when considering whether or not to

suspend or revoke a fiduciary licence.

(4) The Commission may refuse an application for a fiduciary

licence which is not accompanied by the appropriate fee prescribed by regulations

under section 7 or which is otherwise not made in accordance with the provisions of

this Law.

Fees, regulations and recovery of fees. for fiduciary licences.

7. The States of Guernsey PolicyResources

7. (1) The Committee may, after consultation with the Policy and

Resources Committee, the Policy and Finance Committee of the States of Alderney

and the Policy and Performance Committee of the Chief Pleas of Sark, by regulation

prescribe fees to be payable to the Commission in connection with -

(a) any of the matters specified in subsection (2), and

(b) such other matters as the Committee may by regulation

prescribe for the purposes of this Law.

(2) The matters referred to in subsection (1)(a) are -

(a) applications for or in respect of, and the grant, renewal

or variation of, fiduciary licences,

(b) respect ofthe deposit with or giving to the Commission

of applications for and the grant of fiduciary licences

and, periodically, by any return, accounts, report or

36

other document, information or notification under the

provisions of or for the purposes of this Law,

(c) an application, other than one mentioned in paragraph

(a), request or notification to the Commission under the

provisions of or for the purposes of this Law,

(d) any other matters in respect of licensed fiduciaries in

respect of or fiduciary licences; and.

(3) Regulations under this section may also make such regulations

may provide forprovision as the paymentCommittee thinks fit in respect of the

charging of interest or penalties in the event of default in the due payment of fees,

charges, penalties and other amounts required to be paid to the Commission by or

under the provisions of this Law.

(4) Regulations under this section may, without limitation -

(a) prescribe fees to be payable to the Commission annually

or periodically,

(b) specify the dates, times, intervals, occasions,

circumstances or events on, at, in or within which the

payment of fees or interest is to be made,

(c) provide for the determination or calculation of any fee

or interest -

37

(i) in accordance with or by reference to a scale or

other factors prescribed by the regulations, or

(ii) on such other basis as may be so prescribed,

(d) make provision for the payment of fees and interest by

instalments of such number and amounts and at such

times as the regulations may specify or as the

Commission may determine, and

(e) make provision for the variation, on the application of

the payer or of the Commission's own motion, of -

(i) the amount of any interest, or

(ii) the number, amounts and times of the

instalments by which any fee or interest is to be

paid.

(5) Fees and interest payable pursuant to regulations under this

section -

(a) are recoverable from -

(i) the person making the application, request or

deposit concerned or giving the notification or

information concerned,

(ii)

38

Revocation of fiduciary licences.

8. (1) The Commission may revoke

athe licensed fiduciary by or in respect of whom,

or in respect of whose fiduciary licence if it

appearsor business, the fee or interest is payable,

or

(iii) such other person or entity, or class or

description of person or entity, as may be

specified by the regulations,

as a civil debt due to the Commission,

(b) may not (except to the extent that –express provision to

the contrary is made by or under the regulations or

otherwise by or under the provisions of this Law) be

refunded, remitted, reduced or waived,

(a) any of the criteria of Schedule 1 are not or have not been

fulfilled (c) shall, where appropriate, be

proportioned in such manner as may be prescribed by

the regulations.

(6) Without prejudice to the provisions of section 53(5), regulations

under this section may make different provision in respect of -

(a) different categories, classes or descriptions of fiduciary

licence or licensed fiduciary or different categories,

classes or descriptions of regulated activities, or –

39

(b) the same categories, classes or descriptions of fiduciary

licence or licensed fiduciary or the same category, class

or description of regulated activities, for different

purposes or in respect of different circumstances.

(a)(c)

(i) in relation to the licensed fiduciary, or

(ii) in the case of a full fiduciary licence, in relation to any

person who is or is to be a director, controller, partner,

manager or employee of the licensed

fiduciary,

(b) the licensed fiduciary or –any other person described in

paragraph (a)(ii) has committed an offence under any

provision of this Law or of any Ordinance, regulation or

rule made under it or has otherwise contravened any

prohibition, restriction, condition, requirement,

direction or arrangement imposed by or under any such

provision,

(c) a person has become a controller or partner of the

licensed fiduciary in contravention of section 14 or has

become or continued to be a controller or partner after

being given notice of objection under section 14 or 15,

(d) the Commission has been provided with false,

misleading, deceptive or inaccurate information

40

(i) by or on behalf of the licensed fiduciary, or

(ii) in connection with an application for a fiduciary

licence, by or on behalf of a person who is or is

to be a director, controller, partner, manager or

employee of the licensed fiduciary,

(e) the interests of clients of the licensed fiduciary are in any

way threatened, whether by the manner in which the

licensed fiduciary is conducting or proposes to conduct

its affairs or for any other reason,

(f) any fee prescribed by regulations under section 7

payable by the licensed fiduciary or in respect of the

licence has not been paid,

(g) a relevant supervisory authority in a place outside the

Bailiwick has withdrawn from the licensed fiduciary an

authorisation corresponding to a fiduciary licence

under this Lawa composition or arrangement with

creditors has been made in respect of the licensed

fiduciary, or a receiver has been appointed in respect of,

or possession has been taken of, any property of the

licensed fiduciary by or on behalf of its creditors or the

holders of debentures issued by it,

(i) where the licensed fiduciary is incorporated outside the

Bailiwick, an event has occurred outside the Bailiwick in

relation to it which corresponds as nearly as may be to

41

any event described in paragraph (h), (k), (l) or (m),

the licensed fiduciary has not carried on by way of business a

regulated activity in the Bailiwick or elsewhere within a

period of 12 months beginning on the day on which the

fiduciary licence was granted or, having so carried on a

regulated activity in the Bailiwick or elsewhere, has

subsequently not done so for any period of more than

six months,

(k) the affairs of the licensed fiduciary have been declared

in a state of "désastre" at a meeting of arresting creditors

held before a Commissioner of the Royal Court, the

Court of Alderney or the Court of the Seneschal,a

preliminary vesting order has been made against the

licensed fiduciary in respect of any real property in the

Bailiwick, or

(m) otherwise than for the sole purpose of solvent

amalgamation or solvent reconstruction, a liquidator

(provisional or otherwise) has been appointed to act in

relation to the estate or affairs of the licensed fiduciary

or the licensed fiduciary has passed a special resolution

requiring it to be wound up voluntarily.

(2) In considering whether or not to revoke a fiduciary licence the

Commission may, without prejudice to the generality of the foregoing provisions of

this section, have regard to any matter to which it may have regard under section 6

when considering whether or not to grant an application for a fiduciary licence.

42

(3) A decision of the Commission to revoke a fiduciary licence shall

not, subject to the provisions of subsection (4), have effect until the end of the period

within which, under section 19, an appeal can be brought against the revocation or, if

an appeal is brought within that period, until the appeal is determined or withdrawn.

(4) Where the Commission is of the view that it is necessary or

desirable to do so –

(a) in the interests of the clients of a licensed

fiduciary, or

(b) for the protection or enhancement of the reputation of

the Bailiwick,

the Commission may apply to the Court for an order under this

subsection directing that its decision to revoke a

fiduciary licence should, without prejudice to any

appeal in respect of the decision under section 19, have

immediate effect; and the Court may make an order

under this subsection on such terms as it thinks just.

(5) An application by the Commission for an order under

subsection (4) may, with the approval of the Court, and on such terms as the Court

may direct, be made ex parte

(7) The provisions of this section are in addition to and not in

derogation from any other provision of this Law or the provisions of the regulatory

Laws in respect of the payment of fees, interest and penalties.

.

43

(6) In this section "the Court" means –

(a) where the licensed fiduciary in relation to the licence of

which the order is sought –

(i) is an Alderney company, or

(ii) is not an Alderney company or a Guernsey

company but has its principal place of business

in Alderney,

the Court of Alderney,

(b) where the licensed fiduciary in relation to the licence of

which the order is sought is not an Alderney company

or a Guernsey company but has its principal place of

business in Sark, the Court of the Seneschal,

(c) in any other case, the Royal Court.

Conditions of fiduciary licences.

98. (1) The Commission may, by notice in writing, when granting a

fiduciary licence or at any time thereafter, impose such conditions in respect of the

licence as it thinks fit.

(2) Such conditions may apply to licensed fiduciaries generally, to

any class or description of licensed fiduciary or to any particular licensed fiduciary.

(3) The Commission may, by notice in writing, vary or rescind any

44

condition of a fiduciary licence.

(4) Without prejudice to the generality of subsection (1), the

conditions which may be imposed in respect of a fiduciary licence may make

provision as to the duration of the licence and for the protection of the clients of the

licensed fiduciary; and without limitation such conditions may –

(a) require the licensed fiduciary to take certain steps, to

refrain from adopting or pursuing a particular course of

action or to restrict the scope of its business in a

particular way,

(b) impose limitations on the acceptance or carrying on of

business,

(c) prohibit the licensed fiduciary from soliciting (whether

at all or in any specified manner) business, either

generally or from persons who are not already clients,

(d) prohibit the licensed fiduciary from entering into any

other transaction or class or description of transactions,

(e) require the removal of any director, controller, manager,

partnerholder of a supervised role in respect of, or

officer or employee of or deemed holder or partner (or

general partner, in the case of a limited partnership, or

member, in the case of a limited liability partnership) of,

the licensed fiduciary,

45

(f) specify requirements to be fulfilled otherwise than by

action taken by the licensed fiduciary,

(g) require the furnishing to the Commission, at such times,

intervals and places as may be specified by the

Commission, of such information and documents, and

of accounts of such description, in such form and

containing such information and particulars, as may be

so specified,

(h) specify requirements as to the capitalisation and margin

of solvency of the business of the licensed fiduciary,

(i) require the licensed fiduciary to obtain professional

indemnity insurance in such amount and upon such

terms and conditions as may be specified,

(j) prohibit, restrict or impose limitations on the carrying

on by way of business of regulated activities, or any

class or description of regulated activities, in or from

within any place, or any particular place, outside the

Bailiwick –

(i) by the licensed fiduciary itself,

(ii) by any undertaking established by the licensed

fiduciary (including, without limitation, any

branch or, subsidiary, ancillary vehicle or special

purpose vehicle thereof), or

46

(iii) through or by means of a relationship with any

person (including, without limitation, a

relationship of partnership, affiliation or

association).

(5) A licensed fiduciary which contravenes any condition of a

fiduciary licence is guilty of an offence.

(6) The contravention of a condition of a fiduciary licence shallis,

whether or not constituting an offence under subsection (5), be a ground for the

suspension or revocation of the licence but shalldoes not of itself invalidate any

contract entered into or transaction completed under the authority of the licence

before the date of suspension or revocation.

(7) A licensed fiduciary whose fiduciary licence is subject to a

condition as to its duration may apply under section 5 for a new fiduciary licence and,

if that licence is granted, the restrictedfirst-mentioned licence shall cease to have effect.

(8) In considering whether or not to impose, vary or rescind any

condition in respect of a fiduciary licence the Commission may, without prejudice to

the generality of the foregoing provisions of this section, have regard (so far as

relevant) to any matter to which it may have regard under the provisions of section 6

of this Law or 8section 28 or 29 of the Enforcement Powers Law when considering

whether or not to grant an application for a fiduciary licence or to(as the case may be)

to suspend or revoke a fiduciary licence.

Notice of refusal, etc, of fiduciary licences.

10. (1) Where the Commission decides –

47

(a) to refuse a fiduciary licence, or

(b) otherwise than with the agreement of the licensed

fiduciary concerned –

(i) to revoke a fiduciary licence, or

(ii) to impose, vary or rescind any condition in

respect of a fiduciary licence,

the Commission shall serve upon the applicant or (as the case may be) the licensed

fiduciary concerned notice in writing of the decision setting out, where appropriate,

particulars of the condition in question.

(2) A notice under subsection (1) shall state the grounds of the

Commission's decision and shall give particulars of the right of appeal conferred by

section 19.

(3) Where –

(a) a ground for a decision mentioned in subsection (1) is

that any criterion of paragraph 3 of Schedule 1 is not or

has not been fulfilled, or may not be or may not have

been fulfilled, in the case of any person, or

(b) a condition of a fiduciary licence requires the removal of

any person as a director, controller, partner, manager or

employee,

48

the Commission shall serve upon that person a copy of the notice mentioned in

subsection (1) (which copy may omit any matter which does not relate to that person)

together with particulars of the right of appeal conferred by section 19.

Surrender of fiduciary licences.

119. (1) A licensed fiduciary may surrender his fiduciary licence by

notice in writing served upon the Commission.

(2) A surrender shall take effect, subject to the provisions of

subsection (5), upon service of the notice or such later date as may be specified therein;

and where a later date is so specified, the licensed fiduciary may by a further notice in

writing served upon the Commission substitute an earlier date upon which the

surrender is, subject as aforesaid, to take effect, not being earlier than the date upon

which the firstfurther notice was served.

(3) The surrender of a fiduciary licence shall, subject to the

provisions of subsection (5), be irrevocable unless it is expressed to take effect on a

particular date and before that date the Commission, upon the written application of

the licensed fiduciary, by notice in writing to the licensed fiduciary allows the

surrender to be withdrawn.

(4) WhereThe Commission may, on receipt of an application under

subsection (3), the Commission decidesdecide not to allow the surrender of a fiduciary

licence to be withdrawn –

(a) it shall give written notice of its decision to the licensed

fiduciary, setting out particulars of the right of appeal

conferred by section 19, and

49

(b) ; but, where the Commission so decides, without prejudice to the powers of

the Commission conferred otherwise than by this section, the surrender shalldoes not

have effect before the end of the period within which, under section 1921, an appeal

can be brought or, if an appeal is brought within that period, before the appeal is

determined or withdrawn.

(5) A surrender of a fiduciary licence is not effective unless prior

written consent to the surrender has been obtained from the Commission.

(6) The Commission may refuse its consent to the surrender of a

fiduciary licence -

(a) if, in the opinion of the Commission, the liabilities of the

licensed fiduciary have not been discharged or

transferred,

(b) if the Commission believes that the surrender would not

be in the interests of the public or the reputation of the

Bailiwick as a finance centre, or

(c) if the name of the licensed fiduciary would not,

immediately after the surrender, comply with the

requirements of section 49 of the Enforcement Powers

Law.

(7) Upon the surrender of a fiduciary licence no fee paid or payable

by the licensed fiduciary concerned pursuant to regulations under section 7 shall be

refundablerefunded, remitted, reduced or waived.

50

Principles of conduct

Principles of conduct for licensed fiduciaries.

10. (1) A licensed fiduciary must deal with the Commission in an open

and co-operative manner and keep the Commission promptly informed of anything

concerning it or its business, or the regulated activities in relation to which it is acting

as licensed fiduciary, which ought reasonably to be disclosed to the Commission.

(2) Without limitation, the Commission may have regard to the

duty imposed by this section in performing any of its functions.

PART II SUPERVISION OF LICENSED FIDUCIARIES

Directions

DirectionsPower to fiduciaries.issue directions.

1211. (1) The Commission may, at any time, by notice in writing, give

such directions to any person referred to in subsection (2) (the "directed person"),

requiring him to do or not to do any thing, as appear to the Commission to be

necessary or desirable in the interests of the public or the reputation of the Bailiwick

as a finance centre, whether for the purpose of safeguarding assets or otherwise. –

(a) when serving notice under section 10 upon a licensed

fiduciary that the Commission has decided to revoke his

fiduciary licence,

51

(b) at any time after such a notice has been served (whether

before or after the fiduciary licence is revoked),

(c) at any time after a licensed fiduciary has served a notice

under section 11 surrendering his fiduciary licence

(whether or not with immediate effect), or

(d) in the case of a licensed fiduciary whose fiduciary

licence is subject to a condition as to its duration, upon

the expiry of the licence or at any time thereafter,

give the licensed fiduciary such directions as appear to the Commission to be desirable

in the interests of the clients of the fiduciary, whether for the purpose of safeguarding

assets or otherwise.

(2) A direction under this section may be given to -

(a) a licensed fiduciary,

(b) subject to the provisions of subsection (5), a former

licensed fiduciary,

(c) a person carrying on by way of business regulated

activities -

(i) who is exempted by the provisions of this Law

from the requirement to be licensed hereunder,

or

52

(ii) otherwise in such circumstances specified in the

provisions of this Law as not to require licensing

hereunder,

in respect of such activities,

(d) a person who is the holder of a supervised role in

respect of, or is an officer or employee of -

(i) a licensed fiduciary, or

(ii) a person described in paragraph (c),

(e) a person who has or is reasonably suspected of having

contravened -

any of the provisions of this Law or the regulatory Laws,

or

(ii) any prohibition, restriction, condition,

obligation, enforcement requirement, other

requirement, duty, direction or arrangement

imposed, issued or arising under any such

provision,

(f) an ancillary vehicle of a person or entity specified in any

other paragraph of this subsection, or

(g) a person or entity or class or description of person or entity prescribed for the

purposes of this section by regulations of the Committeemay vary or rescind a

53

direction by notice in writing served on the directed person.

(4) Without prejudice to the generality of subsection (1), directions

thereundera direction may –-

(a) require the licensed fiduciarydirected person to take

certain steps, to refrain from adopting or pursuing a

particular course of action or to restrict the scope of

hisits business in a particular way,

(b) prohibit or impose limitations uponon the acceptance of

the business of or the carrying on of regulated activities

and other business, or on the acceptance or repayment

of client assets, the granting of credit or the making of

investments,

(c) prohibit, restrict or impose limitations on the acceptance

of the business of or the carrying on of regulated

activities, or any class or description of regulated

activities, in or from within any place, or any particular

place, outside the Bailiwick -

(i) by the directed person himself,

(ii) by any undertaking established by the directed

person (including, without limitation, any

branch, subsidiary, ancillary vehicle or special

purpose vehicle thereof), or

54

(iii) through or by means of a relationship with any

person (including, without limitation, a

relationship of partnership, affiliation or

association),

(d) prohibit the directed person from soliciting (whether at

all or in any specified manner) the business of regulated

activities and other business, either generally or from

specified persons or classes or descriptions of persons,

(e) prohibit the directed person from entering into any

other transaction or class or description of transactions,

(f) require the removal of any person who is the holder of

a supervised role in respect of, or who is an officer,

employee or auditor of, the directed person,

(g) specify requirements to be fulfilled otherwise than by

action taken by the directed person,

(h) require the furnishing to the Commission, at such times,

intervals and places as may be specified by the

Commission, of such information and documents, and

of accounts of such description, in such form and

manner and containing such information and

particulars, as may be so specified,

(i) require the directed person to maintain in the Bailiwick,

or to transfer to and keep in the custody of a trustee,

55

custodian, licensed fiduciary, licensed banking

institution or person of such other class or description

as may be specified in the direction, assets of such value

and description as may be so specified; and any such

direction may provide that -

(i) assets kept in the custody of a trustee, custodian,

licensed fiduciary, licensed banking institution

or other person pursuant to the direction shall

not, so long as the direction is in force, be

removed from such custody or be made the

subject of any charge, mortgage, hypothèque,

secured interest (including a security interest

within the meaning of the Security Interests

(Guernsey) Law, 1993h), trust, assignment, lien,

right of set-off or other dealing except with the

prior written consent of the Commission,

(ii) any charge, mortgage, hypothèque, secured

interest (including a security interest within the

meaning of the Security Interests (Guernsey)

Law, 1993), trust, assignment, lien, right of set-off

or other dealing purportedly created, executed or

entered into by the directed person in

contravention of the direction shall be ineffective

against any claim by any liquidator of that

h Order in Council No. III of 1993.

56

person,

and a direction imposed by virtue of this paragraph shall

be effective in law against or (as the case may require)

for the benefit of third parties notwithstanding any rule

of law to the contrary,

(j) where the directed person is a licensed fiduciary, and

without prejudice to paragraph (i), require the directed

person to take all necessary steps to transfer to a trustee,

custodian, licensed fiduciary, licensed banking

institution or person of any other class or description, in

each case approved by the Commission, all assets, or all

assets of any specified class or description, which -

(i) belong to the directed person, or

(ii) are held by or to the order of the directed person

and either belong to clients or belong to –

(A) an investment company the shares in

which belong to clients, or

(B) some other company, legal person or

entity which is, or the assets of which are,

wholly beneficially owned by clients,

(k) require the directed person to provide evidence of -

57

(i) compliance with -

(A) any provision of this Law and the

regulatory Laws, or

(B) any prohibition, restriction, condition,

obligation, enforcement requirement,

other requirement, duty, direction or

arrangement imposed, issued or arising

under any such provision, and

(ii) fulfilment of any of the applicable minimum

criteria for licensing (whether in relation to the

directed person or any person who is or is to be

the holder of a supervised role in respect of, or an

officer or employee of, the directed person),

in whatever form and manner and at whatever time the

Commission may reasonably determine,

(l) where a notice of revocation or proposed revocation of

licence has been issued to the directed person under the

provisions of the Enforcement Powers Law, require that

person to take all reasonable steps to procure the

transfer of all or any of his clients to another licensed

fiduciary acceptable to the Commission,

(m) require the directed person to prepare consolidated

accounts (in addition to any accounts required to be

58

prepared by virtue of the provisions of this Law),

(n) require the directed person to appoint a compliance

officer,

(o) require the directed person to deposit with the

Commission, and to comply with, a recovery plan

acceptable to the Commission,

(p) require the directed person to obtain professional

indemnity insurance in such amount and upon such

terms and conditions as may be specified,

(q) contain such ancillary, incidental and supplementary

provision as the Commission may determine.

prohibit the licensed fiduciary from soliciting business either

generally or from persons who are not already clients,

(d) prohibit the licensed fiduciary from entering into any

other transaction or class of transactions,

(e) require the removal of any director, controller, partner,

manager or employeeNo direction shall be given by

virtue of paragraph (a) or (b) of subsection (1), and any

direction given by virtue of either of those paragraphs

shall cease to have effect, if –

,

59

(h) (a) the Commission

(i) serves upon the licensed fiduciary concerned notice in

writing that

(i) it no longer proposes to revoke his fiduciary

(j) (i)

(l) licence, or

(n) .

(5) A direction may be imposed on a former licensed fiduciary only

within a period of six years immediately following the date on which the former

licensed fiduciary ceased to be licensed, unless in any particular case the Commission

directs otherwise with the prior written authority of not less than two ordinary

members of the Commission.

However, for the avoidance of doubt, a direction imposed on a former

licensed fiduciary within that six year period may, in accordance with subsection (7),

remain in force after the expiration of that period.

(6) A direction may be imposed on a person or entity which has at

any time been or been deemed to be a directed person of a class or description

specified in subsection (2) in all respects as if they were a person or entity which is

currently a directed person of that class or description, but only for a period of six

years immediately following the date on which that person or entity ceased to be or

be deemed to be a directed person of that class or description, unless in any particular

case the Commission directs otherwise with the prior written authority of not less than

two ordinary members of the Commission.

60

However, for the avoidance of doubt, a direction imposed on a person

or entity which has at any time been or been deemed to be a directed person of a class

or description specified in subsection (2) within that six year period may, in

accordance with subsection (7), remain in force after the expiration of that period.

This subsection does not apply to a former licensed fiduciary.

(7) A direction shall remain in force until rescinded by the

Commission, unless it is expressed to be of limited duration in which case it shall

remain in force until -

(a) the occurrence of such date, time, event or circumstance

as may be specified in it,

(b) such prohibitions, restrictions or requirements as may

be so specified are complied with, or

(c) rescinded by the Commission, if earlier.

For the avoidance of doubt, a direction imposed on a licensed fiduciary

or other person or entity of a class or description referred to in subsection (2) may

remain in force after -

(b) the Commission's decision to revoke the date of

revocation, suspension, expiration or surrender

of the fiduciary licence is reversed on appeal., or,

as the case may be,

(4) No direction shall be given by virtue of paragraph (c) of

61

subsection (1), and any direction given by virtue of that paragraph shall cease to have

effect –

(ii) the date on which that person or entity ceases to

be a person or entity of that class or description.

(8

(a) if the Commission allows the licensed fiduciary, under

section 11(3), to withdraw the surrender of his fiduciary

licence, or

(b) in cases where the Commission decides not to allow the

licensed fiduciary, under section 11(3), to withdraw the

surrender of his fiduciary licence, if the Commission's

decision is set aside on appeal under section 19.

(5) A licensed fiduciaryperson who contravenes any provision of a

direction under subsection (1)this section is guilty of an offence.

(6) A contravention by (9) Where the directed

person is a licensed fiduciary of , the fact that a direction has been contravened is,

whether or not constituting an offence under subsection (1) shall not 8), a ground for

the suspension or revocation of the fiduciary licence in question (see sections 28 and

29 of the Enforcement Powers Law) but does not of itself invalidate any contract or

transaction completed under the authority of the fiduciary licence concerned.

(7) Where a direction under subsection (1) requires

(10) In the event of failure by the directed person to comply with a direction

under this section, the Commission may, without prejudice to any other penalties,

powers or proceedings in respect of the failure to comply, apply to the appropriate

62

Court for an order requiring the directed person to comply, in such manner as the

appropriate Court thinks fit, with the direction; and an order of the appropriate Court

under this subsection may contain such incidental, ancillary, consequential and

supplementary provision, and may be made on such terms and conditions and subject

to such penalty, as the appropriate Court thinks proper.

the removal of a person as director, controller, partner (or general partner, in the case

of a limited partnership, or member, in the case of a limited liability partnership) or

employee of a licensed fiduciary, the Commission shall serve upon that person a copy

of the direction (which copy may omit any matter which does not relate to him)

together with particulars of the right of appeal conferred by section 19.

(8) The Commission may vary or rescind any direction under

subsection (1) by notice in writing served upon the licensed fiduciary concerned.

(9) Directions under subsection (1) shall give particulars of the

right of appeal conferred by section 19.

4 (6) Where the States by Ordinance under subsection (1), (2) or (3)

specify any other class or description of person or entity in respect of which persons

shall be considered to be the holders of supervised roles for the purposes of this Law,

the Ordinance may (without prejudice to any other provision of this Law conferring

power to enact Ordinances) provide that the provisions of this Law shall have effect

in relation to that class or description of person or entity and the holders of supervised

roles in respect of them subject to such exceptions, adaptations and modifications as

the Ordinance may prescribe.

(11) In considering whether or not to impose, vary or rescind any

63

direction the Commission may, without limitation, have regard (so far as relevant) to

any matter to which it may have regard under the provisions of section 6 of this Law

or section 28 or 29 of the Enforcement Powers Law when considering whether or not

to grant an application for, or (as the case may be) to suspend or revoke, a fiduciary

licence.

(12) The Commission may publish, in such manner (including,

without limitation, by being placed on the Commission's official website) and for such

period as the Commission may determine, notice of the imposition, variation or

rescission of a direction and the date from which any such direction, variation or

rescission is effective; and, in deciding whether or not to do so, the Commission shall

have regard to the interests of the public and the reputation of the Bailiwick as a

finance centre.

The publication may contain such information in respect of any person named therein,

and such ancillary, incidental and supplementary information, as the Commission

may determine.

(13) In this section the "appropriate Court" means -

(a) the Court of Alderney, where the directed person is

within the jurisdiction of that Court,

(b) the Court of the Seneschal, where the directed person is


(c) the Royal Court, in any other case.

Information as to fiduciaries

64

Publication of names of licensed fiduciaries.

13. (1) The Commission shall cause to be published, in such manner as

it thinks fit (including, without limitation, on its official website), a list of all persons

holding fiduciary licences; and the list shall state, in relation to each person mentioned,

the category of fiduciary licence held by him.

(2) The Commission shall make available to any person, on request

and on payment of such charge (if any) as the Commission may reasonably demand

to cover the cost of preparation, a list of all persons holding fiduciary licences.

(3) The Commission shall publish the fact that a person has ceased

to hold a fiduciary licence, whether by virtue of the revocation, surrender or expiry of

the licence or otherwise.

(4) The Commission may also publish the fact that a particular

person has been granted or refused a fiduciary licence or that a particular person does

not hold or has not held a fiduciary licence.

(5) Any list or publication under this section may contain such

information (if any) in respect of all or any of the persons named therein as the

Commission may think desirable or expedient.

Objection to controllers

,

Notification of and objection to controllers.

14. (1) No person shall become –

(a) a shareholder controller or an indirect controller of a

65

licensed fiduciary which is a company, or

(b) a partner (or general partner, in the case of a limited


partnership) in a licensed fiduciary which is a

partnership,

unless he has notified the Commission in writing of his intention to become such a

controller or partner and the Commission has notified him in writing that there is no

objection to his becoming such a controller or partner.

(2) Following receipt of notification under subsection (1) from any

person, the Commission may by notice in writing require him to furnish such

additional information or documents as the Commission may require for the purpose

of deciding whether or not to serve a notice of objection.

(3) The Commission may serve a notice of objection under this

section if it is not satisfied –

(a) that the person concerned is a fit and proper person to

become a controller of the description in question, or a

partner (or general partner, in the case of a limited


partnership), of the licensed fiduciary,

(b) that the interests of clients of the licensed fiduciary

would not in any other manner be threatened by that

person becoming a controller of that description or a

partner, or

66

(c) without prejudice to paragraphs (a) and (b), that, having

regard to that person's likely influence on the licensed

fiduciary as a controller of the description in question or

as a partner –

(i) the criteria of Schedule 1 would continue to be

fulfilled –

(A) in relation to that licensed fiduciary, and

(B) where a full fiduciary licence or

secondary fiduciary licence is held, in

relation to any person who is or is to be a

director, controller, partner (or general

partner, in the case of a limited

partnership, or member, in the case of a

limited liability partnership) or

employee of that licensed fiduciary, or

(ii) if any of those criteria were not so fulfilled, that

that person would be likely to undertake

remedial action.

(4) A notice of objection under this section shall –

(a) specify the matter mentioned in subsection (3) as to

which the Commission is not satisfied, and

67

(b) give particulars of the right of appeal conferred by

section 19.

Objection to existing controllers.

15. (1) Where in the opinion of the Commission a person who is –

(a) a shareholder controller or an indirect controller of a

licensed fiduciary which is a company, or

(b) a partner of a licensed fiduciary which is a partnership,

is not or is no longer a fit and proper person to be such a controller or partner, the

Commission may serve him with a written notice of objection.

(2) A notice of objection under this section shall give particulars of

the right of appeal conferred by section 19.

Contraventions by controllers.

16. A person who –

(a) becomes a shareholder controller or an indirect

controller or partner in contravention of section 14(1), or

(b) becomes or continues to be such a controller or partner

after a notice of objection has been served on him under

section 14 or 15,

is guilty of an offence unless he shows that he was not aware of the acts or

circumstances by virtue of which he became a controller of the description in question

68

or partner; but in such a case he shall be guilty of the offence if he fails to give the

Commission notice in writing of the fact that he has become a controller of the

description in question or partner within a period of 14 days immediately following

the day on which he becomes so aware.

Restrictions on sale of shares.

17. (1) The powers conferred by this section are exercisable where a

person has become a shareholder controller in contravention of section 14(1) or has

become or continued to be such a controller after a notice of objection has been served

on him under section 14 or 15.

(2) The Commission may, by notice in writing served on the person

concerned, direct that any specified shares to which this section applies shall, until

further notice, be subject to all or any of the following restrictions –

(a) any transfer of, or agreement to transfer, those shares or,

in the case of unissued shares, any transfer of, or

agreement to transfer, the right to be issued with them,

shall be void,

(b) no voting right shall be exercisable in respect of those

shares,

(c) no further shares shall be issued in right of them

or in pursuance of any offer made to their

holder,

(d) except in a liquidation, no payment shall be made of any sum due on the shares

from the licensed fiduciary, whether in respect of capital or otherwise.

69

(3) The Court, on the application of the Commission, may order the

sale of any specified shares to which this section applies and, if the shares are subject

to restrictions under subsection (2), that they shall cease to be subject thereto.

(4) No order shall be made under subsection (3) in a case where a

notice of objection has been served under section 14 or 15 –

(a) until the end of the period within which, under section

19, an appeal can be brought against the notice of

objection, or

(b) if such an appeal is brought within that period, until the

appeal is dismissed or withdrawn.

(5) Where an order is made under subsection (3) the Court may, on

the application of the Commission, make such further order relating to the sale or

transfer of the shares as it thinks fit.

(6) Where shares are sold pursuant to an order under subsection

(3), the proceeds of sale, less the costs of the sale, shall be paid to Her Majesty's Sheriff

for the benefit of the persons beneficially interested in them, and any such person may

apply to the Court for an order for the whole or part of the proceeds to be paid to him;

and in this subsection "Her Majesty's Sheriff" means –

(a) where the order was made by the Court of Alderney, the

Clerk of the Court of Alderney,

(b) where the order was made by the Court of the

70

Seneschal, the Prévôt,

(c) where the order was made by the Royal Court, Her

Majesty's Sheriff.

(7) This section applies –

(a) to all shares in the licensed fiduciary of which the

person in question is a controller of the relevant

description which are held by him or any associate of

his and which were not so held immediately before he

became such a controller of that licensed fiduciary, and

(b) in cases where the person in question became a

controller of the relevant description of a licensed

fiduciary as a result of the acquisition by him or any

associate of his of shares in another company, to all

shares in that other company which are held by him or

any associate of his and which were not so held before

he became such a controller of that licensed fiduciary.

(8) A copy of the notice served on the person concerned under

subsection (2) shall be served on the licensed fiduciary or company to whose shares

the notice relates and, if the notice relates to shares held by an associate of that person,

on that associate.

(9) A notice served on the person concerned under subsection (2)

shall give particulars of the right of appeal conferred by section 19; and any direction

contained in the notice may be varied by a further direction or rescinded by the

71

Commission by notice in writing to that person.


(a) where the person against whom the order under

subsection (3) is sought is within the jurisdiction of the

Court of Alderney or the Court of the Seneschal, the

Court of Alderney or, as the case may be, the Court of

the Seneschal,

(b) the Court of the Seneschal, where the directed person is


(c) the Royal Court, in any other case, the Royal Court.

and liable on summary conviction to a fine not exceeding twice level 5 on the uniform

scale[(3) A person guilty of an offence under subsection (2) is liable on summary

conviction to a fine not exceeding twice level 5 on the uniform scale.]

Prohibition orders

Power to make prohibition orders.

17A. (1) If it appears to the Commission, having regard to the provisions

of paragraph 3 of Schedule 1, that an individual is not a fit and proper person to

perform functions in relation to a regulated activity carried on by a licensed fiduciary,

the Commission may make an order (a "prohibition order") prohibiting that

individual from performing any function, any specified function or any specified

description of function.

72

(2) A prohibition order may relate to –

(a) any regulated activity, any specified regulated activity

or any specified description of regulated activity,

(b) licensed fiduciaries generally or any specified class of licensed fiduciary.

(3) An individual who performs or agrees to perform any function

in breach of a prohibition order is guilty of an offence and liable –

(a) on summary conviction, to a fine not exceeding level 5

on the uniform scale, to imprisonment for a term not

exceeding 3 months or to both,

(b) on conviction on indictment, to a fine, to imprisonment

for a term not exceeding 2 years or to both.

(4) A licensed fiduciary shall take

reasonable care to ensure that none of its functions, in

relation to the carrying on of a regulated activity, is

performed by a person who is prohibited from

performing that function by a prohibition order.

(5) The Commission may, on the application of the individual

named in a prohibition order, vary or revoke it.

(6) In this section "specified" means specified in a prohibition

order.

73

List of prohibition orders.

17B. (1) The Commission shall maintain a list of all individuals to whom

a prohibition order applies.

(2) The list referred to in subsection (1) shall specify the functions

or description of functions which the individual concerned is prohibited from

performing.



to cover the cost of preparation, a copy of the list referred to in subsection (1).

(4) The Commission may publish –

(a) the list referred to in subsection (1), and

(b) the fact that a person has been named in a prohibition

order or that a prohibition order has been varied or

revoked.

(5) Any list or publication under this section may contain such

information (if any) in respect of all or any of the persons named therein as the

Commission may think desirable or expedient.

Right to make representations as to prohibition orders.

17C. (1) If the Commission proposes to make a prohibition order against

any individual, it shall serve on him a notice in writing –

(a) stating that the Commission is proposing to make a

74

prohibition order against him,

(b) stating the terms of, and the grounds for, the proposed

prohibition order,

(c) stating that he may, within a period of 28 days

beginning on the date of the notice, make written

or oral representations to the Commission in

respect of the proposed prohibition order in

such manner as the Commission may from time

to time determine, and

(d) giving particulars of the right of appeal which would be

exercisable if the Commission were to make the

prohibition order.

(2) The Commission shall consider any

representations made in response to a notice served

under subsection (1) before giving further consideration

to the proposed prohibition order.

(3) The period of 28 days mentioned in

subsection (1)(c) may be reduced in any case in which

the Commission considers it necessary to do so in the

public interest or in the interests of the reputation of the

Bailiwick as a finance centre.

(4) Where, having considered any representations made in

response to a notice served under subsection (1), the Commission decides to make a

75

prohibition order against any individual, it shall serve on him notice in writing of the

decision –

(a) stating the terms of, and the grounds for, the prohibition

order, and

(b) giving particulars of the right of appeal conferred by

this Law.

Reasons for decisions and appeals

Disclosure of reasons for decision.

18. (1) Where the Commission makes a decision in respect of which a

right of appeal is conferred by section 19, the person upon whom the right of appeal

is conferred may, whether or not he institutes an appeal, but subject to the provisions

of subsection (2), require the Commission to furnish him with a written statement of

the reasons for the decision.

(2) Subsection (1) shall not require the Commission to specify any

reason which would in its opinion involve the disclosure of confidential information

the disclosure of which would be prejudicial to –

(a) a criminal or regulatory investigation (whether in the

Bailiwick or elsewhere),

(b) co-operation or relations with investigatory, regulatory or prosecuting

authorities in any other place, or

(c) a third party.

76

Supervised roles

Supervised roles.

12 (1) A person who, in relation to a body, is appointed as or

otherwise becomes -

(a) a director,

(b) a controller,

(c) a partner (or general partner, in the case of a limited


partnership),

(d) a money laundering reporting officer,

(e) a money laundering compliance officer, or

(f) a compliance officer,

shall be deemed for the purposes of this Law to be the holder of an "approved

supervised role" in respect of that body, and the appointment to or acquisition of the

role shall be subject to the provisions of section 14.

(2) A person who, in relation to a body, is appointed as or otherwise becomes the

holder of any such position, interest or role as the Committee may specify by

regulation as being a vetted supervised role for the purposes of this Law shall be

deemed for those purposes to be the holder of a "vetted supervised role" in respect of

that body, and the appointment to or acquisition of the role shall be subject to the

77

provisions of section 15.

(3) A person who, in relation to a body, is appointed as or

otherwise becomes -

(a) a significant shareholder,

(b) an "other supervised manager", that is to say, a person

appointed -

(i) otherwise than as a chief executive, to exercise,

under the immediate authority of a director or

partner (or general partner, in the case of a

limited partnership, or member, in the case of a

limited liability partnership), day-to-day

managerial functions in relation to regulated

activities in respect of which the body is or will

be licensed,

(ii) to any other role in order to enable the body to

fulfil the requirements of paragraph 4 of

Schedule 1,

shall be deemed for the purposes of this Law to be the holder of a "notified supervised

role" in respect of that body, and the appointment to or acquisition of the role shall be

notified to the Commission in accordance with the provisions of section 16.

(4) The Committee may by regulation amend this section so as to

add to, remove or vary the positions, interests or roles included in each category of

78

supervised role set out in subsections (1), (2) and (3).

(5) For the avoidance of doubt, the fact that a person is the holder

of a supervised role does not of itself establish that he is a shadow director within the

meaning of section 132 of the Companies (Guernsey) Law, 2008 or 163(1) of the

Companies (Alderney) Law, 1994.

(3) Where, pursuant to the provisions of subsection (2), the

Commission omits any matter from a statement of reasons, it shall inform the person

concerned of the fact that there has been such an omission and give particulars of the


Rights of appeal.

19. (1) A person aggrieved by a decision of the Commission –

(a) to refuse an application by him for a fiduciary licence,

(b) to revoke his fiduciary licence,

(c) to impose, vary or rescind any condition in respect of his

fiduciary licence,

(d) to serve a notice on him under paragraph (g) of section

3(1) disapplying the exemption contained in that

paragraph in respect of him,

(e) not to allow the surrender of his fiduciary licence to be

withdrawn under section 11(3),

79

(f) to give him directions under section 12(1), 17(2) or 20(7)

or to vary or rescind any direction so given,

(g) to omit, pursuant to the provisions of section 18(2), any

matter from a statement of reasons given to him,

(h) to serve a notice on him under section 23(1), (2), (3) or

(10), 24(1) or (3) or 25(1),

(i) to refuse his application under section 38(1), or to

revoke a permission granted to him under that section,

or to impose, vary or rescind any condition in respect of

any such permission, or

(j) to serve a notice on him under section 39 objecting to a

name,

(k) to make a prohibition order under section 17A

prohibiting him from performing any function, any

specified function or any specified description of

function, or

(l) to refuse to vary or revoke any such order under section

17A(5),

may appeal to the Court against the decision.

(2) Where –

80

(a) a ground for a decision described in subsection (1)(a),

(b) or (c) is that mentioned in section 10(3)(a), or

(b) the effect of a decision described in subsection (1)(c) or (f) is to require the

removal of a person as director, controller, partner, manager or employee of the

applicant or licensed fiduciary in question,

the person to whom the ground relates or whose removal is required may appeal to

the Court against the finding that there is a ground for the decision or, as the case may

be, against the decision to require his removal.

(3) A person aggrieved by a decision of the Commission to serve a

notice of objection on him under section 14 or 15 may appeal to the Court against the

decision.

(4) The grounds of an appeal under this section are that –

(a) the decision was ultra vires or there was some other

error of law,

(b) the decision was unreasonable,

(c) the decision was made in bad faith,

(d) there was a lack of proportionality, or

(e) there was a material error as to the facts or as to the

procedure.

81

(5) An appeal under this section shall be instituted –

(a) within a period of 28 days immediately following the

date of the notice of the Commission's decision or, as the

case may be, the notice of objection,

(b) by summons served on the Chairman of the

Commission stating the grounds and material facts on

which the appellant relies.

(b) (6) The Commission may, where an appeal under this

section has been instituted, apply to the Court, by summons served on the appellant,

for an order that the appeal shall be dismissed for want of prosecution; and upon

hearing the application the Court may –

(a) dismiss the appeal or dismiss the application (in either

case upon such terms and conditions as the Court may

direct), or

(b) make such other order as the Court considers just,

and the provisions of this subsection are without prejudice to the inherent powers

of the Court or to the provisions of rule 36(2) of the Royal Court Civil Rules, 1989i.

(7) On an appeal under this section the Court may –

i O.R.C. No. VII of 1989.

82

(a) set the decision of the Commission aside and, if the

Court considers it appropriate to do so, remit the matter

to the Commission with such directions as the Court

thinks fit, or

(b) confirm the decision.

(8) On an appeal under this section against a decision of the

Commission the Court may, upon the application of the appellant, and on such terms

as the Court thinks just, suspend or modify the operation of the condition or direction

or order in question, or the variation or rescission thereof, pending the determination

of the appeal.

(9) For the purposes of determining an appeal under this section

against a decision described in subsection (1)(g) to omit, pursuant to section 18(2), any

matter from a statement of reasons, the Court may examine the information the

disclosure of which the Commission considers would be prejudicial; and the

information shall not, pending the determination of the appeal, be disclosed to the

appellant or any person representing him.


(a) where the person described in subsection (1), (2) or, as

the case may be, (3) –

(i) is an Alderney company, or

(ii) is not an Alderney company or a Guernsey

83

company but has its principal or prospective

principal place of business in Alderney,


(b) where that person is not an Alderney company or a

Guernsey company but has its principal or prospective

principal place of business in Sark, the Court of the

Seneschal,

(c) in any other case, the Royal Court.

(11) An appeal from a decision of the Royal Court made under this

Law (including a decision made on an appeal from the Court of Alderney or the Court

of the Seneschal) shall lie to the Court of Appeal on a question of law.

(12) In subsections (10) and (11) "the Royal Court" means the Royal

Court sitting as an Ordinary Court, constituted by the Bailiff sitting unaccompanied

by the Jurats; and for the purposes of an appeal under this section the Royal Court

may appoint one or more assessors to assist it in the determination of any matter

before it.

,

partner (or general partner, in the case of a limited partnership,

or member, in the case of a limited liability partnership),

.

(3)

84

(b)

Advertising for business, etc

Control of advertising.

20. (1) The Commission may, after consultation with the Policy and


and the Policy and Performance Committee of the Chief Pleas of Sark, make

regulations in respect of the issue, form and content of fiduciary advertisements.

(2) Regulations under this section may, without prejudice to the

generality of subsection (1) –

(a) prohibit the issue of advertisements of any description

(whether by reference to their contents, to the persons

by whom they are issued or otherwise),

(b) make provision as to the matters which must or which

may not be included in fiduciary advertisements,

(c) provide for exemptions from any prohibition or

requirement imposed by the regulations, including

exemptions by reference to a person's membership of a

class whose membership is determined otherwise than

by the Commission,

(d) make different provision in relation to different

categories of fiduciary licence.

(3) Subject to subsection (4), a person who issues or causes to be

85

issued, in or from within the Bailiwick or (in the case of a Bailiwick company) in or

from within any place whatsoever, an advertisement the issue of which is prohibited

by regulations under this section or which otherwise contravenes any provision of

such regulations is guilty of an offence.

(4) A person whose business it is to publish or arrange for the

publication of advertisements shall not be guilty of an offence under subsection (3) if

he proves that –

(a) he received the advertisement for publication in the

ordinary course of his business,

(b) the matters contained in the advertisement were not

(wholly or in part) devised or selected by him or by any

person under his direction or control, and

(c) he did not know and had no reason to believe that

publication of the advertisement would constitute an

offence.

(5) In this section a "fiduciary advertisement" means any

advertisement containing –

(a) an invitation to become a client of or to use services

provided by any person carrying on or offering to carry

on by way of business any regulated activities, or

(b) information which is intended or might reasonably be

presumed to be intended to lead directly or indirectly to

86

a person becoming such a client or using such services,

and for the purposes of this section an "advertisement" includes any means of

bringing such an invitation or such information to the notice of any person; and

references to the issue of an advertisement shall be construed accordingly.

(6) For the purposes of this section –

(a) an advertisement issued or caused to be issued by any

person by way of display or exhibition in a public place

shall be deemed to have been issued or caused to be

issued by him on every day on which he causes or

permits it to be displayed or exhibited,

(b) the issue of an advertisement containing an invitation to

become a client of or to use services provided by a

person specified in the advertisement, being a person

carrying on or offering to carry on by way of business

any regulated activities, shall, unless the contrary is

proved, be presumed to have been caused by that

person,

(c) an advertisement issued outside the Bailiwick shall be

deemed to have been issued in the Bailiwick if it is

directed to persons in the Bailiwick, or if it is made

available to them otherwise than in a newspaper,

journal, magazine or other periodical publication

published and circulating principally outside the

Bailiwick or a sound or television broadcast transmitted

87

principally for reception outside the Bailiwick.

(7) If the Commission considers that any fiduciary advertisement

issued or proposed to be issued is misleading, the Commission may give the

advertiser a direction under this section.

(8) A direction under this section may contain any or all of the

following –

(a) a prohibition on the issue of any advertisements or any

advertisements of a specified description,

(b) a prohibition on the issue of any advertisements which

are, wholly or substantially, repetitions of an

advertisement which has been issued and which is

identified in the direction,

(c) a requirement to take all practical steps to withdraw,

whether from display in any place or otherwise, any

advertisements or any advertisements of a specified

description,

(d) a requirement that any advertisements or any

advertisements of a specified description shall be

modified in a specified manner.

(9) A direction under this section –

(a) may have immediate effect,

88

(b) shall give particulars of the right of appeal conferred by

section 19, and

(c) if given orally, shall be confirmed by the Commission in

writing not later than the next working day.

(10) A direction under this section may be varied by a further

direction or rescinded by the Commission by notice in writing to the advertiser

concerned.

(11) A person who issues or causes to be issued, in the Bailiwick or

elsewhere, an advertisement the issue of which is prohibited by a direction under this

section or who otherwise contravenes any provision of such a direction is guilty of an

offence.

Notification of certain matters

Notification of change of director, etc.

21. (1) Subject to subsection (3), where any person has become or has

ceased to be a director, controller or partner (or general partner, in the case of a

limited partnership, or member, in the case of a limited liability partnership

Information as to fiduciaries

List of, and information as to, licensed fiduciaries.

13. (1) The Commission shall establish and maintain, in such form as

the Commission may determine, and cause to be published, in such manner as it

thinks fit (including, without limitation, on its official website), a list of all persons

89

holding fiduciary licences (“the list”); and the list shall state, in relation to each person

mentioned, the category of fiduciary licence held by him.



to cover the cost of preparation, a copy of the list.

(3) The list shall contain, in relation to each licensed fiduciary -

(a) the name of the licensed fiduciary,

(b) the addresses or principal places of business of the

licensed fiduciary in the Bailiwick,

(c) unless the Commission determines otherwise, details of

-

any conditions imposed in respect of the fiduciary

licence,

(ii) any directions given to the licensed fiduciary, or

any enforcement requirements imposed on the licensed

fiduciary or any other person in connection with

the fiduciary licence, and

such other particulars as the Commission may determine.

(4) The Commission shall publish the fact that a particular person

has ceased to hold a fiduciary licence, whether by virtue of the revocation, surrender

or expiry of the licence or otherwise, or has had its fiduciary licence suspended.

90

(5) The Commission may also publish the fact that a particular

person has been granted or refused a fiduciary licence or that a particular person

does not hold or has not held a fiduciary licence.

(6) If at any time it appears to the Commission -

(a) whether in consequence of -

any grant, suspension, revocation, surrender or expiry of

a fiduciary licence, or

any change in relation to a licensed fiduciary, or

(b) due to an error or for any other reason,

that the list or any particular contained in an entry in the list is inaccurate, the

Commission shall make such addition, erasure or other alteration to the list or entry

as the Commission considers necessary.

(7) The list and any publication under this section may contain

such information in respect of any person named therein, and such ancillary,

incidental and supplementary information, as the Commission may determine.

Notification of holding of vetted and approved supervised roles, etc

and acquisition of voting power

Notification of and objection to holders of approved supervised roles.

14. (1) No person shall become the holder of an approved supervised

role in respect of a licensed fiduciary unless -

(a) he or the licensed fiduciary has notified the Commission

91

in writing of the intention that he should become the

holder of such a role, and

(b) the Commission has notified him or the licensed

fiduciary in writing that there is no objection to his

becoming the holder of such a role.

(2) A notification under subsection (1) shall be given in such form

and manner as the Commission may require and shall be accompanied by –

(a) such information and documents as the Commission

may require for the purpose of deciding whether or not

to serve a notice of objection, and

(b) such fee as may be prescribed by regulations under

section 7;

and following receipt of notification under subsection (1) from any person, the

Commission may by notice in writing require him to furnish such additional

information or documents as the Commission may require for the purpose referred to

in paragraph (a).


section if it is not satisfied -


become the holder of an approved supervised role of the

description in question in respect of the licensed

fiduciary;

92



person becoming the holder of an approved supervised

role of that description; or



fiduciary as the holder of an approved supervised role

of the description in question -

(i) the minimum criteria for licensing would

continue to be fulfilled -

(A) in relation to that licensed fiduciary; and



relation to any person who is or is to be

the holder of a supervised role in respect

of or employee of that licensed fiduciary;

or

if any of those criteria were not so fulfilled, that that

person would be likely to undertake remedial

action.

(4) A notice of objection under this section shall -


93

which the Commission is not satisfied; and

(b) give particulars of the right of appeal conferred by

section 21.

(5) The Commission may, by notice in writing, and subject to such

conditions as it thinks fit, exempt any person or licensed fiduciary or class, description

or category of person or licensed fiduciary from the application of all or any of the

requirements of subsection (1), either generally or in any particular case or class of

case, and whether before or after the event in question.

Notification of and objection to holders of vetted supervised roles.

15. (1) No person shall become the holder of a vetted supervised role

in respect of a licensed fiduciary unless -

(a) he or the licensed fiduciary has notified the Commission

in writing of the intention that he should become the

holder of such a role, and

(b) the Commission has notified him or the licensed

fiduciary in writing that there is no objection to his

becoming the holder of such a role;

and, for the purposes of this subsection, the Commission's written notification that

there is no objection to a person becoming the holder of such a role shall be deemed

to have been given in any particular case on the expiration of a period of 60 days

beginning on the date of compliance by that person or the licensed fiduciary with the

requirements of this subsection and any other requirements imposed under

subsection (2) (or such longer period as the Commission may, before the expiration of

94

that period, determine) unless, before the expiration of that period, the Commission

serves notice of objection under this section on that person or the licensed fiduciary.

(2) A notification under subsection (1) shall be given in such form

and manner as the Commission may require and shall be accompanied by –


may require for the purpose of deciding whether or not

to serve a notice of objection, and

(b) such fee as may be prescribed by regulations under

section 7;

and following receipt of notification under subsection (1) from any person, the

Commission may by notice in writing require him to furnish such additional

information or documents as the Commission may require for the purpose referred to

in paragraph (a).


section if it is not satisfied -


become the holder of a vetted supervised role of the

description in question in respect of the licensed

fiduciary;



person becoming the holder of a vetted supervised role

95

of that description; or



fiduciary as the holder of a vetted supervised role of the

description in question -

the minimum criteria for licensing would continue to be

fulfilled -

(A) in relation to that licensed fiduciary; and



relation to any person who is or is to be

the holder of a supervised role in respect

of or employee of that licensed fiduciary;

or

(ii) if any of those criteria were not so fulfilled, that

that person would be likely to undertake

remedial action.

(4) A notice of objection under this section shall -


which the Commission is not satisfied; and

(b) )give particulars of the right of appeal conferred by

section 21.

96


conditions as it thinks fit, exempt any person or licensed fiduciary or class, description

or category of person or licensed fiduciary from the application of all or any of the

requirements of subsection (1), either generally or in any particular case or class of

case, and whether before or after the event in question.

Notification of change of holder of supervised role.

16. (1) Subject to the provisions of subsection (4), where any person

has become or has ceased to be the holder of a supervised role in respect of a licensed

fiduciary, the licensed fiduciary shall give notice in writing to the Commission of the

fact.

(2) ASubject as aforesaid, a notice required to be given under

subsection (1) shall be given within a period of 14 days immediately following the day

on which the licensed fiduciary becomes aware of the relevant fact.

(3) The Commission may in its absolute discretion waive any

requirement of A notice required to be given under subsection (1) shall be given in

such form and manner as the Commission may require and shall be accompanied by

–


may require, and

(b) ), either wholly or in part, in respect of any such fee as

may be prescribed by regulations under section 7;

and following receipt of such notice from a licensed fiduciary, the Commission may

97

by notice in writing require him to furnish such additional information or documents

as the Commission may require.

(4) The Commission may whose principal place, by notice in

writing, and subject to such conditions as it thinks fit, exempt any licensed fiduciary

or class, description or category of licensed fiduciary from the application of business

is outside the Bailiwickall or any of the requirements of subsection (1), (2) or (3), either

generally or in any particular case or class of case, and whether before or after the

event in question.

(45) A licensed fiduciary who fails to give notice in accordance with

this section is guilty of an offence.

Notification of acquisition of significant shareholding.

2217. (1) A person who becomes a significant shareholder in relation to

a licensed fiduciary which is a company shall, within a period of 14 days immediately

following the day of that event, give notice in writing of the event to the Commission.

(2) For the purposes of this Law a "significant shareholder", in

relation to a company, means a person who, alone or with associates, is entitled to

exercise, or control the exercise of, 5 per cent or more but less than 15 per cent of the

voting power in general meeting of that company or of any other company of which

that company is a subsidiary.

(3 (2) A person who fails to give notice in accordance

with subsection (1) is guilty of an offence unless he shows that he was not aware that

the facts or circumstances were such as to require the giving of such notice; but in such

a case he shall be guilty of the offence if he fails to give such notice within a period of

14 days immediately following the day uponon which he becomes so aware.

98

PART III REPRESENTATIONS, DECISIONS AND APPEALS

Representations, notice of decisions

and appeals

Representations concerning proposed decisions of Commission.

18. (1) Before the Commission makes a decision in respect of which a

right of appeal is conferred by section 21, other than a decision to serve a notice under

section 15 or 26, the procedure prescribed in this section shall be followed.

(2) The Commission shall serve on the person by whom, in the

opinion of the Commission, the right of appeal would be exercisable if the

Commission were to make the proposed decision (the "person concerned") a notice in

writing -

(a) stating that the Commission is proposing to make the

decision,

(b) stating the terms of and the grounds for the proposed

decision,

(c) setting out particulars -

(i) of any order, restriction, condition, obligation,


proposed to be imposed, renewed, varied or

99

rescinded, or

(ii) of any notice proposed to be served,

(d) stating that the person concerned (and, where

appropriate, the person upon whom a copy of the notice

is served under subsection (3)) may, within a period of

28 days (or such longer period as the Commission may

specify in the notice or subsequently allow) beginning

on the date of the notice, make written and/or oral

representations to the Commission in respect of the

proposed decision in such manner as the Commission

may from time to time determine,

(e) containing or accompanied by, in accordance with the

provisions of section 20(1), a statement of the reasons for

the proposed decision (but subject to the provisions of

section 20(2)), and

(f) giving particulars of the right of appeal which would be

exercisable under section 21 if the Commission were to

make the proposed decision.

(3) Where -

(a) a ground for the proposed decision is that any of the

minimum criteria for licensing are not or have not been

fulfilled, or may not be or may not have been fulfilled,

in the case of any person, or

100

(b) any proposed order, restriction, condition, obligation,

requirement, duty, direction or arrangement requires

the removal or replacement of any person as an officer,

employee or auditor, or holder of a supervised role,


subsection (2) (which copy may omit any matter which does not relate to him) together

with particulars of the right of appeal which would be exercisable under section 21 if

the Commission were to make the proposed decision.

(4) The Commission shall consider any representations made in

response to a notice served under this section before giving further consideration to

the proposed decision.

(5) The Commission may also, in performing its functions under

the provisions of this Law or the regulatory Laws, and without limitation, have regard

to -

(a) any representations made in response to a notice served

under this section, or

(b) any failure or omission to make any such

representations.

(6) The period of 28 days mentioned in subsection (2)(d) may be

reduced in any case in which the Commission considers it necessary to do so in the

interests of the public or the reputation of the Bailiwick as a finance centre; and if by

reason of those interests the Commission considers that the decision in question needs

101

to be taken immediately as a matter of urgency then, with the prior written authority

of not less than two ordinary members of the Commission, the procedure prescribed

in this section may be dispensed with altogether.

Obtaining of information

Power to obtain information and documents.

23. (1) The Commission may, by notice in writing served on a licensed

fiduciary, require him to provide the Commission –

(a) at such times or intervals, at such place and in respect of

such periods as may be specified in the notice, with such

information as the Commission may reasonably require

for the performance of its functions,

(b) with a report, in such form as may be specified in the

notice, by a person who is an accountant or who

otherwise has relevant professional skill and who is

nominated or approved by the Commission on, or on

any aspect of, any matter in relation to which the

Commission may require information under paragraph

(a).

(2) The Commission may, by notice in writing served on a licensed

fiduciary –

(a) require him to produce, within such time and at such

place as may be specified in the notice, such documents

or documents of such description as may be so specified,

102

(b) require him to furnish forthwith, to any of the

Commission's officers, servants or agents authorised for

the purposes of this paragraph, on production of

evidence of such authority, such information and

documents as the officer, servant or agent may specify,

being information or documents reasonably required by the Commission for the

performance of its functions.

(3) Where under subsection (2) the Commission

Notice of decisions of Commission.

19. (1) Where the Commission (having taken into account, where

appropriate, any representations made by the person concerned) makes a decision in

respect of which a right of appeal is conferred by section 21, other than a decision to

serve a notice under section 15 or 26, notice in writing of the decision -

(a) shall be served by the Commission on the person

concerned,

(b) shall state the terms of and the grounds for the decision,

shall set out particulars -

(i) of any order, restriction, condition, obligation,


imposed, renewed, varied or rescinded, or

(ii) of any notice to be served,

103

(d) shall contain or be accompanied by, in accordance with

the provisions of section 20(1), a statement of the

reasons for the decision (but subject to the provisions of

section 20(2)), and

(e) shall give particulars of the right of appeal conferred by

section 21;

and "the person concerned" means the person by whom, in the opinion of the

Commission, the right of appeal is exercisable.

(2) Where -

(a) a ground for a decision notice of which is required to be

served under subsection (1) is that any of the minimum

criteria for licensing are not or have not been fulfilled,

or may not be or may not have been fulfilled, in the case

of any person, or

an order, restriction, condition, obligation, requirement, duty,

direction or arrangement requires the removal or

replacement of any person as an officer, employee or

auditor, or holder of a supervised role,


subsection (1) (which copy may omit any matter which does not relate to him) together

with particulars of the right of appeal conferred by section 21.

Disclosure of reasons for decisions of Commission.

20. (1) When the Commission serves notice on a person -

104

(a) under section 19(1) or (2) of a decision in respect of

which a right of appeal is conferred by section 21, or

(b) under section 18(2) or (3) stating that the Commission is

proposing to make such a decision,

the Commission shall, subject to the provisions of subsection (2), provide that person

with a written statement of the reasons for the decision or proposed decision, as the

case may be.

(2) Subsection (1) does not require the Commission to specify any

reason which would in its opinion involve the disclosure of confidential information

the disclosure of which would be prejudicial to -

(a) a criminal or regulatory investigation (whether in the

Bailiwick or elsewhere),

(b) co-operation or relations with investigatory, regulatory

or prosecuting authorities, whether in the Bailiwick or

elsewhere, or

(c) a third party (wherever situated).

(3) Where, pursuant to the provisions of subsection (2), the

Commission omits any matter from a statement of reasons, it shall inform the person

to whom the statement was provided of the fact that there has been such an omission

and give particulars of the right of appeal conferred by section 21.

105

Appeals to Royal Court against decisions of Commission.

21. (1) A person aggrieved by a decision of the Commission -

(a) under section 6(1), to refuse an application for a

fiduciary licence,

(b) under section 8, to impose any condition in respect of a

fiduciary licence (whether at the time of its issue or

subsequently) or to vary or rescind any condition so

imposedunder section 9 -

(i) not to allow the surrender of a fiduciary licence

to be withdrawn, or

(ii) not to give consent to the surrender of a

fiduciary licence,

(d) under section 11(1) or 24(7), to give any direction or to

vary or rescind any direction so given,

(e) under section 27, to appoint or require the appointment

of a skilled person,

(f) under section 14 (notification of approved supervised

roles), to serve a notice of objection;

(g) under section 15 (notification of vetted supervised

roles), to serve a notice of objection;

106

(h) under section 26, to serve a notice under that section,

(i) to omit, pursuant to the provisions of section 20(2), any

matter from a statement of reasons provided pursuant

to section 20(1),

(j) for the avoidance of doubt, to do any of the above things

pursuant to the operation of section 64 of the

Enforcement Powers Law, or

(k) which is a decision of such class or description as the

States may by Ordinance prescribe for the purposes of

this section,

may appeal to the Royal Court against the decision.

(2) Where -

(a) a ground for a decision described in subsection (1) is

that any of the minimum criteria for licensing are not or

have not been fulfilled, or may not be or may not have

been fulfilled, in the case of any person, or

(b) the effect of a decision described in subsection (1) is to

require the removal or replacement of any person as an

officer, employee or auditor, or holder of a supervised

role,

the person to whom the ground relates or whose removal or replacement is required

107

may appeal to the Royal Court against the finding that there is a ground for the

decision or, as the case may be, against the decision to require his removal or

replacement.

(3) The grounds of an appeal under this section are that -

(a) the decision was ultra vires or there was some other

error of law,

(b) the decision was unreasonable,

(c) the decision was made in bad faith,

(d) there was a lack of proportionality, or

(e) there was a material error as to the facts or as to the

procedure.

(4) An appeal under this section shall be instituted –

(a) within a period of 28 days immediately following the

date of the notice of the Commission's decision; and

(b) by summons served on the Chairman of the

Commission stating the grounds and material facts on

which the appellant relies.

(5) The Commission may, where an appeal under this section has

been instituted, apply to the Royal Court, by summons served on the appellant, for an

108

order that the appeal shall be dismissed for want of prosecution; and upon hearing

the application the Royal Court may -

(a) dismiss the appeal or dismiss the application (in either

case upon such terms and conditions as the Royal Court

may direct), or

(b) make such other order as the Royal Court considers just,

and the provisions of this subsection are without prejudice to the inherent powers of

the Royal Court or to the provisions of rule 52(3) of the Royal Court Civil Rules, 2007j.

(6) On an appeal under this section the Royal Court may -

(a) set the decision of the Commission aside and, if the

Royal Court considers it appropriate to do so, remit the

matter to the Commission with such directions as the

Royal Court thinks fit, or

(b) confirm the decision, in whole or in part.

(7) On an appeal under this section against a decision of the

Commission described in -

(a) subsection (1)(b),

j O.R.C. No. IV of 2007.

109

(b) subsection (1)(c)(i),

subsection (1)(d),

(d) subsection (1)(e), or

(e) subsection (1)(h),

the Royal Court may, upon the application of the appellant, and on such terms and

conditions as the Royal Court thinks just, suspend or modify the operation of the

decision in question pending the determination of the appeal.

This subsection is without prejudice to section 18(6).

(8) For the purposes of determining an appeal under this section

against a decision of the Commission described in subsection (1)(i) to omit, pursuant

to the provisions of section 20(2), any matter from a statement of reasons, the Royal

Court may examine the information the disclosure of which the Commission

considers would be prejudicial; and, unless the Royal Court orders otherwise, the

information shall not, pending the determination of the appeal or at any time

thereafter, be disclosed to the appellant or any person representing him.

Appeals from Royal Court to Court of Appeal.

22. (1) An appeal from a decision of the Royal Court made under the

provisions of this Law (including a decision made on an appeal from the Court of

Alderney or the Court of the Seneschal) lies, with leave of the Royal Court or Court of

Appeal, to the Court of Appeal on a question of law.

110

(2) Section 21 of the Court of Appeal (Guernsey) Law, 1961k

("powers of a single judge") applies to the powers of the Court of Appeal to give leave

to appeal under subsection (1) as it applies to the powers of the Court of Appeal to

give leave to appeal under Part II of that Law.

Restriction on successive challenges.

23. (1) The Commission shall not (unless, in the opinion of the

Commission, there are exceptional circumstances to justify doing so, the burden of

proving which shall be on the applicant) proceed to consider an application by a

person for the variation or revocation of an order or other decision to which this

section applies where -

(a) the application is a further application, that is to say, an

application which relates to a person in respect of whom

a previous application for the variation or revocation of

that order or other decision has been received by the

Commission,

(b) in the opinion of the Commission, that further

application discloses no significant change in any

material circumstances concerning that person (the

burden of proving that there has been such a significant

change being on the applicant), and

either -

k Ordres en Conseil Vol. XVIII, p. 315; there are amendments not material to this enactment.

111

(i) an appeal under section 21 relating to a previous

such application in respect of that person has

been commenced but not yet determined, or

(ii) within the period of 12 months immediately

preceding receipt of that further application -

(A) a previous such application in respect of

that person has been determined by the

Commission, or

an appeal under section 21 relating to a previous

such application in respect of that person

has been determined.

(2) The orders and other decisions to which this section applies are

-

(a) a decision under section 8 to impose, vary or rescind any

condition in respect of a fiduciary licence,

(b) a decision to appoint or require the appointment of a

skilled person under section 27a decision to serve notice

of objection under section 14 (objection to holders of

approved supervised role),

(d) a decision to serve notice of objection under section 15

(objection to holders of vetted supervised role),

(e) an order or other decision of a class or description

112

specified by regulations of the Committee.

Advertising for business, etc

Control of advertising.

24. (1) The Commission [Committee] may make regulations in respect

of the issue, form and content of fiduciary advertisements.

(2) Regulations under this section may, without prejudice to the

generality of subsection (1) or section 53 –

(a) prohibit the issue of advertisements of any description

(whether by reference to their contents, to the persons

by whom they are issued or otherwise),

(b) make provision as to the matters which must or which

may not be included in fiduciary advertisements,

(c) provide for exemptions from any prohibition or

requirement imposed by the regulations, including

exemptions by reference to a person's membership of a

class whose membership is determined otherwise than

by the Commission,

(d) make different provision in relation to different

categories of fiduciary licence.

(3) Subject to the provisions of subsection (4), a person who issues

or causes or permits to be issued, in or from within the Bailiwick or (in the case of a

113

Bailiwick body) in or from within any place whatsoever, an advertisement the issue

of which is prohibited by regulations under this section or which otherwise

contravenes any provision of such regulations is guilty of an offence.

(4) A person whose business it is to publish or arrange for the

publication of advertisements is not guilty of an offence under subsection (3) if he

proves that –

(a) he received the advertisement for publication in the

ordinary course of his business,

(b) the matters contained in the advertisement were not

(wholly or in part) devised or selected by him or by any

person under his direction or control, and

(c) he did not know and had no reason to believe that

publication of the advertisement would constitute an

offence.

(5) In this section a "fiduciary advertisement" means any

advertisement containing –

(a) an invitation to become a client of or to use services

provided by any person carrying on or offering to carry

on by way of business any regulated activities, or

(b) information which is intended or might reasonably be

presumed to be intended to lead directly or indirectly to

a person becoming such a client or using such services.

114

(6) For the purposes of this section –

(a) an advertisement issued or caused to be issued by any

person by way of display or exhibition in a public place

shall be deemed to have been issued or caused to be

issued by him on every day on which he causes or

permits it to be displayed or exhibited,

(b) the issue of an advertisement containing an invitation to

become a client of or to use services provided by a

person specified in the advertisement, being a person

carrying on or offering to carry on by way of business

any regulated activities, shall, unless the contrary is

proved, be presumed to have been caused by that

person,

(c) an advertisement issued outside the Bailiwick shall be

deemed to have been issued in the Bailiwick if it is

directed to persons in the Bailiwick, or if it is made

available to them otherwise than by means published,

circulated, displayed, broadcast or transmitted

principally outside the Bailiwick or principally for

reception outside the Bailiwick.

(7) If the Commission considers that any fiduciary advertisement

issued or proposed to be issued is misleading, the Commission may give the

advertiser a direction under this section.

115

(8) A direction under this section may (without limitation) contain

any or all of the following –

(a) a prohibition on the issue of any advertisements or any

advertisements of a specified description,

(b) a prohibition on the issue of any advertisements which

are, wholly or substantially, repetitions of an

advertisement which has been issued and which is

identified in the direction,

(c) a requirement to take all practical steps to withdraw,

whether from display in any place or otherwise, any

advertisements or any advertisements of a specified

description,

(d) a requirement that any advertisements or any

advertisements of a specified description shall be

modified in a specified manner,

(e) such ancillary, incidental and supplementary provision

as the Commission may determine

(9) A direction under this section –

(a) may have immediate effect, and

(b) if given orally, shall be confirmed by the Commission in

writing not later than the next working day.

116

(10) A direction under this section may be varied or rescinded by

the Commission by notice in writing to the advertiser concerned.

(11) A direction under this section shall remain in force until

rescinded by the Commission, unless it is expressed to be of limited duration in which

case it shall remain in force until -

(a) the occurrence of such date, time, event or circumstance

as may be specified in it,

(b) such prohibitions, restrictions or requirements as may

be so specified are complied with, or

(c) rescinded by the Commission, if earlier.

(12) In the event of failure by an advertiser to comply with a

direction under this section, the Commission may, without prejudice to any other

penalties, powers or proceedings in respect of the failure to comply, apply to the

appropriate Court for an order requiring the advertiser to comply, in such manner as

the appropriate Court thinks fit, with the direction; and an order of the appropriate

Court under this subsection may contain such incidental, ancillary, consequential and

supplementary provision, and may be made on such terms and conditions and subject

to such penalty, as the appropriate Court thinks proper.

(13) The Commission may publish, in such manner (including,

without limitation, by being placed on the Commission's official website) and for such

period as the Commission may determine, notice of the imposition, variation or

rescission of a direction and the date from which any such direction, variation or

117

rescission is effective; and, in deciding whether or not to do so, the Commission shall

have regard to the interests of the public and the reputation of the Bailiwick as a

finance centre.

The publication may contain such information in respect of any person

named therein, and such ancillary, incidental and supplementary information, as the

Commission may determine.

(14) In this section the "appropriate Court" means -

(a) the Court of Alderney, where the advertiser is within

the jurisdiction of that Court,

(b) the Court of the Seneschal, where the advertiser is



(15) A person who issues or causes to be issued, in the Bailiwick or

elsewhere, an advertisement the issue of which is prohibited by a direction under this

section or who otherwise contravenes any provision of such a direction is guilty of an

offence.


derogation from the provisions of section 11.

Powers to obtain information

Persons to whom section 26 applies.

118

25. (1) In section 26 a "relevant person" means a person or entity of

any of the following classes or descriptions -

(a) a b) an applicant for a fiduciary licence,

(c) a former licensed fiduciary, but subject to the provisions

of subsection (2),

(d) a person carrying on any class or description of

regulated activities -



or



hereunder,

in respect of that class or description of regulated

activities,

(e) a person other than a person mentioned in paragraph

(a), (b) or (d) carrying on any class or description of

regulated activities, but only where the prior written

authority of not less than two ordinary members of the

Commission has been obtained,

(f) a person who is the holder of a supervised role in

119

respect of a relevant person specified in any other

paragraph of this subsection,

(g) where a person (person A) who is a relevant person by

virtue of paragraph (f) is itself a company or other legal

person, any person who is the holder of a supervised

role in respect of, or an officer of, person A,

(h) an employee of, or a person who is or has at any time

been directly or indirectly employed (whether or not

under a contract of employment) by, a relevant person

specified in any other paragraph of this subsection,

(i) any person or entity -

(i) which has or has at any time had any direct or

indirect proprietary, financial, economic or other

interest in or connection with a relevant person

specified in any other paragraph of this

subsection, or

(ii) in or with which a relevant person specified in

any other paragraph of this subsection has or has

at any time had any such interest or connection,

but subject to the provisions of subsection (5),

(j) an associated party of a relevant person specified in any

other paragraph of this subsection, but subject to the

120

provisions of subsection (5),

(k) a group entity of a relevant person specified in any other

paragraph of this subsection, but subject to the

provisions of subsection (5),

(l) a special purpose vehicle or ancillary vehicle of a

relevant person specified in any other paragraph of this

subsection, but subject to the provisions of subsection

(5),

(m) a person who is a significant shareholder of a relevant

person specified in any other paragraph of this

subsection, where that relevant person is a company,

(n) a company of which the holder of a supervised role in

respect of a relevant person specified in any other

paragraph of this subsection is a controller, but subject

to the provisions of subsection (5),

(o) a person who performs any function on behalf of -

(i) a relevant person specified in any other

paragraph of this subsection, or

(ii) a person acting for and on behalf of a relevant

person so specified,

in relation to regulated activities, including, without

121

limitation, a person who is an auditor of a relevant

person so specified, or

(p) a person or entity or class or description of person or

entity prescribed for the purposes of this section by

regulations of the Committee.

(2) The provisions of section 26 apply in relation to a former

licensed fiduciary only for a period of six years immediately following the date on

which he ceased to be licensed, unless in any particular case the Commission directs

otherwise with the prior written authority of not less than two ordinary members of

the Commission.

However, for the avoidance of doubt, if the powers conferred by

section 26 are exercised in respect of a former licensed fiduciary within that six year

period, they may continue to be exercised in respect of him after the expiration of that

period.

(3) The provisions of section 26 apply in relation to a person or

entity which has at any time been or been deemed to be a relevant person of a class or

description specified in this section as they apply in relation to a person or entity

which is currently a relevant person of that class or description, but only -

(a) in connection with the business, ownership or control of

that person or entity at a time when it was or was

deemed to be a relevant person of that class or

description, and

(b) for a period of six years immediately following the date

122

on which that person or entity ceased to be or be

deemed to be a relevant person of that class or

description, unless in any particular case the

Commission directs otherwise with the prior written


Commission.

However, for the avoidance of doubt, if the powers conferred by

section 26 are exercised in respect of a person or entity which has at any time been or

been deemed to be a relevant person of a class or description specified in this section

within that six year period, they may continue to be exercised in respect of that person

or entity after the expiration of that period.

This subsection does not apply to a former 4) For the avoidance

of doubt, if the powers conferred by section 26 are exercised in respect of a licensed

fiduciary or other person or entity of a class or description of relevant person referred

to in subsection (1), the powers may continue to be exercised in respect of them after

-

(a) the date of revocation, suspension, expiration or

surrender of their fiduciary licence, or, as the case may

be,

(b) the date on which that person or entity ceased to be a

relevant person of that class or description.

(5) The powers conferred by section 26 may be exercised in relation

to an associated party, group entity, special purpose vehicle, ancillary vehicle, person

or entity referred to in subsection (1)(i) or company referred to in subsection (1)(n)

123

only -

(a) where it appears necessary or desirable to the

Commission to do so -

(i) in the interests of the public or the reputation of

the Bailiwick as a finance centre, or

(ii) for the purpose of the performance of its

functions, and

(b) with the prior written authority of not less than two

ordinary members of the Commission.

Power to require information and production of documents, etc.

26. (1) The Commission may by notice in writing served on a relevant

person within the meaning of section 25 require him to furnish the Commission or a

person duly appointed by the Commission in that behalf (an "appointed person"), on

any occasion or at times or intervals, and in respect of the periods, at the place, and in

the form or manner, specified by the Commission or appointed person, with such

information and documents as the Commission or (on producing, if required to do so,

evidence of his authority) the appointed person may reasonably require for the

purpose of the performance of the Commission's functions, being, if the Commission

or the appointed person so requires, information and documents verified in such

manner as the Commission or appointed person may reasonably specify.

(2) It is hereby declared for the avoidance of doubt –

124

(a) that a requirement to furnish information under

subsection (1) may be imposed on, or in relation to, a

particular relevant person, all relevant persons or any

class or description of relevant persons,

(b) that a requirement as to the manner in which such

information is to be verified may direct its annexation to

any accounts, and that it be reported upon by the

auditor of those accounts in such manner as the

Commission may specify.

(3) servant or agent thereofWhere by virtue of subsection (1) the

Commission or an appointed person has power to require the production of any

information or documents from a licensed fiduciaryrelevant person, the Commission

or that officer, servant or agent shall haveappointed person has the like power to

require the production of thosethe information or documents from any person who

appears to the Commission or to that appointed person to be in possession of them

(but without prejudice to any lien claimed by such a person on any documents

produced by him)..

(4) TheAny power conferred by or under the provisions of this

section to require a person to produce any documents includes power –

(a) if the documents are produced -

(i) , to take copies of them or extracts from them,

and

(ii) to require –

125

(i) thatA) the person who was required to

produce them, or

(iiB) where that person is a licensed fiduciary

holding a full fiduciary licence or

secondary fiduciary licence, any other

person who is a present or past director,

controller or partner (or general partner,

in the caseholder of a limited

partnership, or member, in the case of a

limited liability partnership)supervised

role in respect of, or is or was at any time

employed by or acting as an employee of,

or directly or indirectly employed

(whether or not under a contract of

employment) by, that licensed

fiduciaryperson,

to provide an explanation of any of them, and

(b) if any of the documents are not produced, to require the

person who was required to produce them to state, to

the best of his knowledge and belief, where they are.

(5) If it appears to the Commission to be desirable in the interests

of the clients of a licensed fiduciary to do so, the Commission may also exercise the

powers conferred by this section in relation to –

126

(a) any company which is or has at any relevant time been

an associated company of the licensed fiduciary (where

the licensed fiduciary is a company), that is to say –

(i) a holding company, subsidiary or related

company of the licensed fiduciary,

(ii) a subsidiary or related company of a holding company

of the licensed fiduciary,

(iii) a holding company of a subsidiary of the

licensed fiduciary, or

(iv) a company in the case of which a shareholder

controller of the licensed fiduciary, alone or with

associates, is entitled to exercise, or control the

exercise of, more than 50% of the voting power

in general meeting, or

(b) where the licensed fiduciary is a partnership, any

company of which a partner in that partnership is or has

at any relevant time been a controller.

(6) For the purposes of this Law a "related company", in relation to

the company in question, means any company (other than one which is a group

company in relation to the company in question) in which the company in question

holds for a significant period a qualifying capital interest for the purpose of securing

a contribution to the company in question's own activities by the exercise of any

control or influence arising from that interest.

127

(7) For the purposes of this Law a "qualifying capital interest"

means, in relation to any company, an interest in shares comprised in the equity share

capital of that company of a class carrying rights to vote in all circumstances at general

meetings of that company.

(8) Where –

(a) a company holds a qualifying capital interest in another

company, and

(b) the nominal value of any relevant shares in that other

company held by the first-mentioned company is equal

to 20% or more of the nominal value of all relevant

shares in that other company,

the first-mentioned company shall be presumed to hold that interest on the basis and

for the purpose mentioned in subsection (6), unless the contrary is shown; and in this

subsection "relevant shares" means, in relation to any company, any such shares in

that company as are mentioned in subsection (7).

(9) The foregoing provisions of this section shall apply in relation

to a former licensed fiduciary as they apply in relation to a licensed fiduciary.

(10) The Commission may, where a licensed fiduciary holds a full

fiduciary licence or secondary fiduciary licence, by notice in writing served on any

person who is or is to be a director, controller, partner (or general partner, in the case

of a limited partnership, or member, in the case of a limited liability partnership) or

employee of the licensed fiduciary, require him to furnish the Commission, within

128

such time as may be specified in the notice, with such information or documents as

the Commission may reasonably require for determining whether he is a fit and

proper person to hold the particular position which he holds or is to hold.

(11) The Commission may, where a licensed fiduciary holds a full

fiduciary licence or secondary fiduciary licence, exercise the powers conferred by

subsections (1) to (4) in relation to –

(a) where the licensed fiduciary is a company, any person

who is a significant shareholder of the licensed

fiduciary, or

(b) where the licensed fiduciary is a partnership, any

person who is a partner (or general partner, in the case

of a limited partnership, or member, in the case of a

limited liability partnership) in the licensed fiduciary,

if the Commission considers that it is desirable to do so in the interests of the clients

of that licensed fiduciary.

(12) A person who without reasonable excuse fails to comply with a

requirement imposed on him by or under this section is guilty of an offence.

(5) A person on whom a requirement is imposed by or under the

provisions of this section shall, if so required by the Commission, provide a statement

or declaration, in such form and manner as the Commission may require, that any

information and documents furnished by him pursuant to the requirement are to the

best of his knowledge accurate, complete and correct, whether for the purpose of

supporting the subsequent use of the information or documents in civil, criminal or

129

administrative proceedings in the Bailiwick or elsewhere or for any other purpose.

(613) A statement made by a person in response to a requirement imposed

by or under the provisions of this section –-

(a) may be used in evidence against him in proceedings

other than criminal proceedings, and

(b) may not be used in evidence against him in criminal

proceedings except –-

(i) where evidence relating to it is adduced, or a

question relating to it is asked, in the

proceedings by or on behalf of that person, or

(ii) in proceedings for –-

(A) an offence under subsection (12) 11) of

this section or section 109(1) of the

Enforcement Powers Law,

(B) some other offence where, in giving

evidence, he makes a statement

inconsistent with it, but the statement is

only admissible to the extent necessary to

establish the inconsistency,

(C) perjury, or

130

(D) perverting the course of justice.

(814) Nothing in the provisions of this section shall compel the

production or divulgence of a communication or item subject to legal professional

privilege when it is in the possession of a person who is entitled to possession of it; by

an advocate or other legal adviser of a communication subject to legal professional

privilege; but an advocate or other legal adviser may be required to give the name and

address (including an electronic address) of any client.

(915) Where a person claims a lien on a document its production

under this section shall be without prejudice to his lien.

(10) A notice imposing a requirement under the provisions of this section shall state

the grounds of the Commission's decision to serve the notice and give particulars of


(11) A person who without reasonable excuse fails to comply with a

requirement imposed on him by or under the provisions of this section is guilty of an

offence.

(16) A requirement imposed by or under this section shall have

effect notwithstanding any obligation as to confidentiality or other restriction upon

the disclosure of information imposed by statute, contract or otherwise; and,

accordingly, the obligation or restriction is not contravened by the making of a

disclosure pursuant to such a requirement.

(17) A notice under subsection (1), (2), (3) or (10) shall give

particulars of the right of appeal conferred by section 19B.

131

Investigations by inspectors.

24. (1) The Commission may, in relation to any licensed fiduciary, if it

considers it desirable to do so –

(a) in the interests of the clients of the licensed fiduciary, or

(b) for the protection or enhancement of the reputation of

the Bailiwick,

appoint one or more competent persons (hereinafter called "inspectors") to investigate

and report to the Commission on –

(i) the nature, conduct or state of the business of the

licensed fiduciary or any particular aspect of that

business, or

(ii) the ownership or control of the licensed

fiduciary,

and the Commission shall give notice in writing of the appointment to the fiduciary

concerned.

(2) An inspector may also, if he thinks it necessary to do so for the

purposes of his investigation, subject to the provisions of subsection (3), investigate

the business of any company –

(a) which is or this section has at any relevant time been an

associated company of the licensed fiduciary under

132

investigation (where the licensed fiduciary is a

company), or

(b) of which a partner in the licensed fiduciary under

investigation is or has at any relevant time been a

controller (where the licensed fiduciary is a

partnership).

(3) An inspector may not investigate the business of a company

under subsection (2) unless and until the Commission has given notice in writing to

the company of the proposed investigation.

(4) A licensed fiduciary or company being investigated under

subsection (1) or (2) and any person who is or has been a director, controller, manager,

partner, employee, agent, banker, auditor, advocate or other legal adviser of a licensed

fiduciary or company being so investigated, or who has been appointed to make a

report in respect of such a licensed fiduciary or company under section 5(6) or section

23(1)(b), or who is or has been a significant shareholder in relation to such a licensed

fiduciary or company –

(a) shall produce to an inspector, at such time and place as

the inspector may require, all documents in his custody

or power relating to that licensed fiduciary or company;

and the inspector may take copies of or extracts from

any documents produced to him under this paragraph,

(b) shall attend before an inspector at such time and place

as the inspector may require and answer such questions

as the inspector may put to him in relation to that

133

licensed fiduciary or company, and

(c) otherwise shall give an inspector all assistance in

connection with the investigation which he is

reasonably able to give.

(5) An inspector shall, if so required, produce evidence of his

authority.

(6) A person who without reasonable excuse –

(a) fails to comply with any provision of subsection (4), or

(b) obstructs, fails to comply with any requirement of or

fails to give all reasonable assistance to an inspector

exercising or purporting to exercise any right conferred

by this section,


(7) A statement made by a person in response to a requirement

imposed by or under this section –




proceedings except –

134




(ii) in proceedings for –

(A) an offence under subsection (6) or section

46(1),






(C) perjury, or


(8) Nothing in this section shall compel the production or

divulgence by an advocate or other legal adviser of a communication subject to legal

professional privilege; but an advocate or other legal adviser may be required to give

the name and address of any client.





135




(11) Subject to the provisions of subsection (12), the costs, fees and

expenses of an investigation and report under subsection (1) or (2) shall be met by the

licensed fiduciary the business, ownership or control of which is being investigated

under subsection (1); and those costs, fees and expenses may, subject as aforesaid, be

recovered by the Commission from that licensed fiduciary as a civil debt.

(12) No sum in respect of the costs, fees and expenses of an

investigation and report under subsection (1) or (2) may be recovered by the

Commission from a licensed fiduciary as a civil debt where the court is satisfied that

–

(a) the sum is not reasonable in amount or was not

reasonably incurred, or

(b) the Commission acted unreasonably, frivolously or

vexatiously in incurring that sum.

(13) A notice under subsection (1) or (3) shall give particulars of the


(14) The provisions of this section shall apply in relation to a former

licensed fiduciary as they apply in relation to a licensed fiduciary, but only in

connection with the business, ownership or control of the former licensed fiduciary at

a time when it held a fiduciary licence.

136

Investigation of suspected offences.

25. (1) Where the Commission has reasonable grounds for suspecting

that a person has committed an offence under section 1, 36 or 37, the Commission may

by notice in writing require that person or any other person –

(a) to furnish, at such place as may be specified in the notice

and either forthwith or at such time as may be so

specified, such information, documents or description

of documents as may be specified and as may

reasonably be required for the purpose of investigating

the suspected offence,

(b) to attend at such place and time as may be specified in

the notice and answer questions relevant for

determining whether such an offence has been

committed.

(2) An officer, servant or agent of the Commission may, on

production if required of evidence of his authority –

(a) take copies of or extracts from, and require an

explanation of, any document furnished in accordance

with the requirements of a notice under subsection (1),

(b) in the case of any document which is not furnished as

required by a notice under subsection (1), require the

person on whom the notice was served to state to the

best of his knowledge and belief the whereabouts of that

document.

137

(3) A person who without reasonable excuse fails to comply with

any requirement of a notice under subsection (1) or obstructs or fails to comply with

any requirement of a person exercising or purporting to exercise any right conferred

by subsection (2) is guilty of an offence.


imposed by or under any provision of this section –





where evidence relating to it is adduced, or a question

relating to it is asked, in the proceedings by or

on behalf of that person, or

in proceedings for –

(A) an offence under subsection (3) or section

46(1),






(C) perjury, or

138


(5) Nothing in this section shall compel the production or

divulgence by an advocate or other legal adviser of a communication subject to legal

professional privilege; but an advocate or other legal adviser may be required to give

the name and address of any client.








(8) A notice under subsection (1) shall give particulars of the right

of appeal conferred by section 19.

Power of Bailiff to grant warrant.

Appointment of skilled persons.

27. (1) The Commission may, in relation to an inspected person within

the meaning of subsection (4), if it considers it necessary or desirable to do so -

(a) in the interests of -

(i) the public, or

139

(ii) the reputation of the Bailiwick as a finance

centre, or

(b) for the purpose of the performance of its functions,

appoint, or require the inspected person to appoint, one or more competent persons

("skilled persons") to investigate and report to the Commission on -

(i) the nature, conduct or state of the business of the

inspected person or any particular aspect of that

business, or

(ii) the ownership or control of the inspected

person,

and the Commission shall give notice in writing of the appointment to the inspected

person.

(2) A report of a skilled person under this section shall be in such

form as may be specified in the notice of the appointment referred to in subsection (1)

or as the Commission may otherwise determine.

(3) A person appointed as a skilled person -

(a) must, if appointed by the inspected person, be

nominated or approved by the Commission, and

(b) must appear to the Commission to have the

140

qualifications, skill and resources necessary to enable

him to conduct the investigation, and to make the

report, in question.

(4) In this section an "inspected person" means a person or entity

of any of the following classes or descriptions -


(b) an applicant for a fiduciary licence,

(c) a former licensed fiduciary, but subject to the provisions

of subsection (5),

(d) a person carrying on any class or description of




or



hereunder,

in respect of that class or description of activities,

(e) a person other than a person mentioned in paragraph

(a), (b) or (d) carrying on any class or description of

141

regulated activities, but only where the prior written


Commission has been obtained,

(f) an associated party of an inspected person specified in

any other paragraph of this subsection, but only where

the prior written authority of not less than two ordinary

members of the Commission has been obtained,

(g) a person who is the holder of a supervised role in

respect of an inspected person specified in any other

paragraph of this subsection,

(h) a person who performs any function on behalf of -

(i) an inspected person specified in any other

paragraph of this subsection, or

(ii) a person acting for and on behalf of an inspected

person so specified,

in relation to regulated activities, including, without

limitation, a person who is an auditor of a relevant an

inspected person so specified, or

(i) a person or entity or class or description of person or


regulations of the Committee.

(5) The provisions of this section apply in relation to a former

142

licensed fiduciary only for a period of six years immediately following the date on

which it ceased to be licensed, unless in any particular case the Commission directs

otherwise with the prior written authority of not less than two ordinary members of

the Commission.

However, for the avoidance of doubt, if the powers conferred by this

section are exercised in respect of a former licensed fiduciary within that six year

period, they may continue to be exercised in respect of it after the expiration of that

period.

(6) The provisions of this section apply in relation to a person or

entity which has at any time been or been deemed to be an inspected person of a class

or description specified in this section as they apply in relation to a person or entity

which is currently an inspected person of that class or description, but only -

(a) in connection with the business, ownership or control of

that person or entity at a time when it was or was

deemed to be an inspected person of that class or

description, and

(b) for a period of six years immediately following the date

on which that person or entity ceased to be or be

deemed to be an inspected person of that class or

description, unless in any particular case the

Commission directs otherwise with the prior written


Commission.

However, for the avoidance of doubt, if the powers conferred by this

143

section are exercised in respect of a person or entity which has at any time been or

been deemed to be an inspected person of a class or description specified in this

section within that six year period, they may continue to be exercised in respect of that

person or entity after the expiration of that period.

This subsection does not apply to a former licensed fiduciary.

(7) For the avoidance of doubt, if the powers conferred by this

section are exercised in respect of a licensed fiduciary or other person or entity of a

class or description of inspected person referred to in subsection (4), the powers may

continue to be exercised in respect of them after -

(a) the date of revocation, suspension, expiration or

surrender of their fiduciary licence, or, as the case may

be,

(b) the date on which that person or entity ceased to be an

inspected person of that class or description.

(8) An inspected person being investigated under this section and

any person described in subsection (9) -

(a) shall produce to a skilled person, at such time and place

and in such form and manner as the skilled person may

require, all documents in his custody or power relating

to the inspected person; and the skilled person may take

copies of or extracts from any documents produced to

him under this paragraph,

144

(b) shall attend before a skilled person at such time and

place as the skilled person may require and answer such

questions and give such explanations as the skilled

person may put to or require of him in relation to the

inspected person, and

(c) otherwise shall give a skilled person all assistance in

connection with the investigation which he is

reasonably able to give.

(9) The persons referred to in subsection (8) are -

(a) a person who is or has been the holder of a supervised

role in respect of, or an employee, partner (or fellow

member, in the case of a limited liability partnership),

significant shareholder, agent, banker, auditor, actuary,

advocate or other legal adviser of, an inspected person

being investigated under this section,

(b) a person appointed as a skilled person pursuant to the

provisions of the regulatory Laws in respect of such an

inspected person, and

(c) a person appointed to make a report under section

5(6)(a) of this Law, section 7(1)(b) or 8 of the

Enforcement Powers Law, [section 3(3)(a)] of the

Protection of Investors Law, [section 5(5)] of the

Banking Supervision Law, [section 6(5)(a) or 36] of the

Insurance Business Law or [section 3(5)(a)] of the

145

Insurance Managers and Intermediaries Law in respect

of such an inspected person.

(10) A skilled person shall, if so required, produce evidence of his

authority.

(11) A person who without reasonable excuse -

(a) contravenes any provision of subsection (8), or

(b) obstructs, fails to comply with any requirement of or

fails to give all reasonable assistance to a skilled person

exercising or purporting to exercise any power

conferred by this section,



imposed by or under this section -




proceedings except -




146

(ii) in proceedings for -

(A) an offence under subsection (11) or

section 109(1) of the Enforcement Powers

Law (but only in relation to a

requirement imposed by or under this

section),






(C) perjury, or


(13) A requirement imposed by or under the provisions of this

section has effect notwithstanding any obligation as to confidentiality or other

restriction upon the disclosure of information imposed by statute, contract or other-

wise; and, accordingly, the obligation or restriction is not contravened by the making

of a disclosure, or by any other act or omission, pursuant to such a requirement.

(14) Nothing in the provisions of this section compels the

production or divulgence of a communication or item subject to legal professional

privilege when it is in the possession of a person who is entitled to possession of it;

but an advocate or other legal adviser may be required to give the name and address

147

(including an electronic address) of any client.


under the provisions of this section is without prejudice to his lien.

(16) Subject to the provisions of subsection (17), the costs, fees and

expenses of an investigation and report under this section shall be met by the

inspected person the business, ownership or control of which is being investigated

under subsection (1); and those costs, fees and expenses may, subject as aforesaid, be

recovered by the Commission from that inspected person as a civil debt.

(17) Any sum in respect of the costs, fees and expenses of an

investigation and report under subsection (1) may be recovered by the Commission

from an inspected person as a civil debt except where and to the extent that the court

is satisfied that -

(a) the sum is not reasonable in amount or was not

reasonably incurred, or

(b) the Commission acted unreasonably, frivolously or

vexatiously in incurring that sum.

For the avoidance of doubt, the burden of establishing the matters

referred to in paragraphs (a) and (b) lie on the person from whom recovery is sought.

(18) No liability is incurred by a skilled person in respect of anything

done or omitted to be done after the commencement of this Law in connection with

the preparation of a report under, or otherwise for the purposes of, this section except

to the extent that the liability arises from his own fraud, wilful misconduct or gross

148

negligence.

26. (1) If the Bailiff (within the meaning of subsection (4)) is satisfied by

information on oath –

(a) that a notice has been served under section 23 on any person and that there are

reasonable grounds for suspecting –

that there has been a failure to comply with any requirement imposed by or under the

notice,

(ii) that there has been a failure by that person to comply with any other

requirement imposed by or under section 23, or

(iii) the accuracy or completeness of any information or documents furnished

pursuant to any requirement mentioned in subparagraph (i) or (ii),

(b) that it is not practicable to serve a notice under section 23, or

(c) that there are reasonable grounds for suspecting that if such a notice were

served –

it would not be complied with,

any documents to which it would relate would be removed, tampered with or

destroyed, or

(iii) the service of the notice might seriously prejudice the performance by the

Commission of its functions,

he may grant a warrant conferring the powers set out in section 27.

149

(2) If the Bailiff is satisfied by information on oath that the

Commission has appointed inspectors under section 24 to carry out an investigation

under that section, and that there are reasonable grounds for suspecting –

(a) that an offence under this Law has been committed in relation to the

investigation,

(b) the accuracy or completeness of any information or documents furnished in

the course of the investigation,

(c) that, if a warrant were not granted –

any documents which the inspectors wish or might wish to inspect would be removed,

tampered with or destroyed, or

(ii) the investigation might be seriously prejudiced,


(3) If the Bailiff is satisfied by information on oath that there are

reasonable grounds for suspecting that a person has committed an offence under

section 1, 36 or 37 and that –

(a) a person has failed to comply with any requirement of a notice under section

25(1) or any other requirement imposed by or under section 25,

(b) there are reasonable grounds for suspecting the accuracy or completeness of

any information or documents furnished pursuant to such a notice or requirement,

(c) it is not practicable to serve a notice under section 25(1), or

150

(d) there are reasonable grounds for suspecting that if such a notice were served –

(i) it would not be complied with,

(ii) any documents to which it would relate would be removed, tampered with or

destroyed, or

(iii) the service of the notice might seriously prejudice the investigation of the

suspected offences,


(4) In this section the expression "Bailiff" means –

(a) where the warrant is to be executed in Alderney, the Chairman or a Jurat of


(b) where the warrant is to be executed in Sark, the Seneschal or his deputy,

(c) in any other case, the Bailiff, Deputy-Bailiff, Lieutenant-Bailiff or Juge Délégué.

Powers conferred by Bailiff's warrant.

27. (1) A warrant granted under section 26(1) shall authorise any

officer of police, together with any other person named in the warrant (including,

without limitation, any officer, servant or agent of the Commission) –

(a) to enter any premises specified in the warrant, being

premises –

151

(i) which are occupied by the person upon whom

the notice under section 23 was or could be

served,

(ii) upon which the documents to which the notice

under section 23 relates are reasonably believed

to be, or

(iii) where no notice under section 23 has been

served, upon which the documents to which the

notice would relate are reasonably believed to

be,

using such force as is reasonably necessary for the

purpose,

(b) to search the premises and, in relation to any documents

–

(i) which were required by the notice under section 23, or

(ii) where no notice under section 23 has been

served, which are of a class or description

specified in the warrant and which could have

been required by a notice under section 23,

to take possession of them or to take any other steps

which may appear to be necessary for preserving them

152

or preventing interference with them,

(c) to take copies of or extracts from any such documents,

(d) to require any person named in, or of a class or

description specified in, the warrant –

(i) to answer any questions which could have been

put to him under section 23,

(ii) to state to the best of his knowledge and belief

the whereabouts of any documents described in

paragraph (b),

(iii) to make an explanation of any such documents.

(2) A warrant granted under section 26(2) shall authorise any




premises –

(i) which are occupied by the licensed fiduciary or

other person being investigated by inspectors

under section 24, or

(ii) upon which any documents to which the

investigation under section 24 relates are

153

reasonably believed to be,


purpose,


appearing to be relevant for the purpose of the

investigation under section 24, to take possession of

them or to take any other steps which may appear to be

necessary for preserving them or preventing

interference with them,




(i) to answer any questions relevant to the

investigation under section 24,

(ii) to state to the best of his knowledge and belief the

whereabouts of any documents described in paragraph

(b),


(3) A warrant granted under section 26(3) shall authorise any



154


premises –

(i) which are occupied by the person upon whom

the notice under section 25(1) was served,

(ii) upon which there are reasonably believed to be

the documents to which the notice under section

25(1) relates, or

(iii) where no notice under section 25(1) has been

served, upon which the documents to which the

notice would relate are reasonably believed to

be,


purpose,


appearing to be relevant for the purpose of investigating

the suspected offence under section 1, 36 or 37, to take

possession of them or to take any other steps which may

appear to be necessary for preserving them or

preventing interference with them,



155


(i) to answer questions relevant for determining

whether he or any other person has committed

an offence under section 1, 36 or 37,

(ii) to state to the best of his knowledge and belief

the whereabouts of any documents described in

paragraph (b),


(4) A warrant granted under section 26 shall cease to be valid on

the expiration of 28 days immediately following the day on which it was issued.

(5) Any documents of which possession is taken under the powers

conferred by a warrant granted under section 26 may be retained –

(a) for a period of three months or such longer period as the

Bailiff may, when issuing the warrant or at any time

thereafter, direct, or

(b) if within that period proceedings to which the

documents are relevant are commenced against any

person, until the conclusion of those proceedings.

(6) A person who without reasonable excuse obstructs or fails to

comply with any requirement of a person exercising or purporting to exercise any

power conferred by a warrant granted under section 26 is guilty of an offence.

156


imposed under a warrant granted under section 26 –








(ii) in proceedings for –

(A) an offence under subsection (6) or 46(1),






(C) perjury, or


(8) Nothing in a warrant granted under section 26 shall compel the

157

production or divulgence by an advocate or other legal adviser of a communication

subject to legal professional privilege; but an advocate or other legal adviser may be

required to give the name and address of any client.


under a warrant granted under section 26 shall be without prejudice to his lien.

(10) A requirement imposed under a warrant granted under section

26 shall have effect notwithstanding any obligation as to confidentiality or other

restriction upon the disclosure of information imposed by statute, contract or

otherwise; and, accordingly, the obligation or restriction is not contravened by the

making of a disclosure pursuant to such a requirement.

Falsification, etc, of documents during investigation.

28. A person 28. A person –(a) upon whom a notice requirement

is imposed by or under the provisions of section 2326 or 25 has been served27 or who

knows or has reasonable grounds to suspect –

(ia) that such a noticerequirement is likely to be

servedimposed on him, or

(iib) that an inquiry or investigation is being or is likely to be

carried out under the provisions of section 23, 2426 or

25, 27,

and (b)who removes, conceals, tampers with, falsifies, conceals, destroys, removes or

otherwise disposes of, or causes or permits to be removed, concealed, tampered with,

falsified, concealed, destroyed, removed or otherwise disposed of, documents which

he knows or has reasonable grounds to suspect –

158

(i) are or would be specified in such a

noticerequirement, or

(ii) are or would be relevant to such an inquiry or

investigation,

is guilty of an offence unless he proves that he had no intention of concealing facts

disclosed by the documents from the Commission or, as the case may be, from the

persons carrying out such an inquiry or investigation.

Retention of documents.

29. (1) The following persons or entities -


b) a person carrying on any class or description of




or



hereunder,

in respect of that class or description of regulated

activities,

159

(c) a person other than a person mentioned in paragraph

(a) or (b) carrying on any class or description of


(d) a person or entity or class or description of person or


regulations of the Committee,

must retain (and make arrangements for the retention, in the event of their dissolution,

winding up, cessation or deregistration, of) all documents and information which they

(or any person or entity acting on their behalf pursuant to any such arrangements)

were required to make, keep or maintain by or under the provisions of this Law or

any other enactment for a period of six years immediately following the date on which

they ceased to be -

(i) a licensed fiduciary, or

(ii) a person of any other class or description

specified in any paragraph of this subsection,

as the case may be.

(2) The period of six years specified in subsection (1) may be

extended by the Commission on any number of occasions for further periods each of

which may not exceed three years by notice in writing served on the person in

question within the six year period or, as the case may be, within the current period

of extension.

160

(3) The provisions of this section are without prejudice to any other

obligation imposed or arising by or under any enactment.

(4) The Commission may make or issue rules, guidance or policies

for the purpose of carrying this section into effect.

(5) Rules, guidance or policies under subsection (4) may, without

limitation, make provision in respect of -

(a) the form in which documents and information are to be

retained and made available,

(b) the classes or descriptions of document to which this

section does, or does not, apply,

(c) the arrangements which a person or entity of a class or

description specified in any paragraph of subsection (1)

must make in respect of the retention of documents in

the event of their dissolution, winding up, cessation or

deregistration, and

(d) the duties and obligations of persons who, pursuant to

arrangements described in subsection (1), retain or have

possession or control of the documents and information

of a person or entity of a class or description specified in

any paragraph of subsection (1) which has been

dissolved, wound up or deregistered or which has

otherwise ceased.

161

(6) Rules under this section may provide that this section shall

have effect in respect of any person or entity or class or description of person or entity

subject to such exceptions, adaptations and modifications as may be specified in the

rules.

Accounts and auditors

Rules as to accounts, etc.

(1) The 29. (1) The Commission may make rules prescribing –

(a) the preparation, keeping, maintenance, submission to

the Commission and publication of accounting records,

(b) the form in which –

(i) a licensed fiduciary's accountsaccounting

records, and

(ii) where the licence held is a full fiduciary licence

or secondary fiduciary licence, the auditor's

report on thosethe licensed fiduciary's accounts,

are to be,

(bc) the information and particulars to be contained in

accounting records and auditors' reports, and the

documents to be appended to or accompany them,

being, where the licence held is a personal fiduciary

licence, information and, particulars and documents

162

relating only to the carrying on by the licensed

fiduciary, by way of business, of regulated activities,

and

(cd) the occasions, times or, intervals or places at which they

, the periods in respect of which and the form and

manner in which -

(i) accounting records, auditor's reports and

documents referred to in the preceding

paragraphs of this subsection, and

(ii) any other accounting records, auditors' reports

and documents -

(A) of a class or description specified in the

rules, or

(B) required by the Commission in the

interests of the public or the reputation of

the Bailiwick as a finance centre,

being records, reports or documents prepared,

kept or maintained otherwise than in respect of

a licensed fiduciary (including, without

limitation, records, reports or documents

prepared, kept or maintained in respect of a

holder of a supervised role, officer, employee,

auditor, associated company, ancillary vehicle

163

or special purpose vehicle or any other class or

description of person or entity specified in the

rules),

are to be drawn up and, furnished, and delivered, and

and rules under this subsection may also make provision in

respect of (e) the delivery of such accounts,persons to

whom accounting records, auditor's reports and other

documents to such persons and at such timesreferred to

in the preceding paragraphs of this subsection are to be

furnished or intervals as may be prescribed by the

rulesdelivered.

(2) Without prejudice to the provisions of this section or any rules

made under subsection (1),it, a licensed fiduciary or other person to whom those

provisions apply shall furnish to the Commission upon request any accounting

records, auditors' reports and other documents required to be kept by or under those

provisions.

(3) In this section "accounting records" includes accounts, profit

and loss accounts, statements of account, consolidated accounts and reports required

to be kept under the rules, balance sheets, reports, financial records and other

associated records and documents.

(34) The Commission may, by notice in its absolute discretion

waivewriting, and subject to such conditions as it thinks fit -

(a) exempt any licensed fiduciary or other person or class,

164

description or category of licensed fiduciary or person

from the application of all or any of the requirements of

this section or any rules made under it, either

whollygenerally or in part, any requirementparticular

case or class of any rules under subsection (1)case, and

whether before or after the event in question, and

(b) without prejudice to the provisions of paragraph (a),

require a licensed fiduciary or other person, instead

require the licensed fiduciary of compliance with the

requirements of this section or any rules made under it,

to furnish to the Commission upon request an abridged

version of the accounts or reportsany accounting

records required to be kept by or under the provisions

of this section or the rules in such form and containing

such information and particulars, and appending or

accompanied by such documents, as the Commission

may require.

(45) A licensed fiduciary who contravenes –

(a) any provision of this section or of any rules made under

it, or

(b) any requirement imposed by or under this section or

any rules made under it,


165

is guilty of an offence, but only, in the case of rules, to the extent that the rules

expressly so provide following consultation with Her Majesty's Procureur.

Notification in respect of auditors.

31. (1) A licensed fiduciary other than the holder of a personal

fiduciary licence shall appoint auditors as auditors to the licensed fiduciary; and

whenever an appointment under this section comes to an end the licensed fiduciary

shall, as soon as is reasonably practicable and in any case within a period of 28 days

after the day on which that appointment came to an end (or such longer period as the

Commission may, in its absolute discretion, by written notice allow) make a fresh

appointment of auditors as auditors to the licensed fiduciary.

(2) A licensed fiduciary making an appointment under this section

shall forthwith give the Commission written notice stating -

(a) the date of the appointment, and

(b) the name and qualification of the person appointed,

and if an appointment under this section comes to an end the licensed fiduciary shall

forthwith give the Commission written notice and explanation of the fact, giving the

name of the person whose appointment has come to an end.

30. (1) A licensed fiduciary which is a company shall forthwith give

notice in writing and explanation to the Commission –

(3) Without prejudice to the provisions of subsection (2), a licensed

fiduciary which is a company shall forthwith give written notice and explanation to

the Commission –

166

(a) if the licensed fiduciary proposes to give special notice

to its shareholdersmembers of a resolution removing an

auditor before the expiration of his term of office,

(b) if the licensed fiduciary gives notice to its

shareholdersmembers of a resolution replacing an

auditor at the expiration of his term of office, or

(c) if a person ceases to be an auditor of the licensed

fiduciary otherwise than pursuant to such a resolution.

(24) An auditor of a licensed fiduciary appointed underfor the

purposes of or in accordance with any requirement imposed by or underthe

provisions of any enactment in force in the Bailiwick or any part thereof, including

this Law, shall forthwith give written notice in writing and explanation to the

Commission if he –

(a) resigns or is removed before, or doesis not reappointed

or does not seek re-appointment upon, the expiration of

his term of office, or

(b) decides to include any qualification as to any matter in

his signs a qualified audit report on the accounts of the

licensed fiduciary.,

(3and a notice under paragraph (a) shall contain -

(i) a statement to the effect that there are no

167

circumstances connected with his ceasing to be

auditor which he considers should be brought to

the attention of the Commission, or

(ii) if there are any such circumstances, a report of

them.

(5) The provisions of this section shallsubsections (3) and (4) apply

in relation to a former licensed fiduciary as they apply in relation to a licensed

fiduciary, but only, subject to the provisions of subsection (46), for a period of threesix

years fromimmediately following the date on which the former licensed fiduciary

ceased to hold a fiduciary licence.

(46) Where an auditor of a former licensed fiduciary appointed as

mentioned in subsection (24) –

(a) resigns or is removed before, or is not reappointed or

does not seek re-appointment upon, the expiration of

his term of office, or

(b) decides to include any qualification as to any matter in

hissigns a qualified audit report on the accounts of the

former licensed fiduciary,

by reason of any fraud of –

(i) the former licensed fiduciary, or

(ii) any holder of a supervised role in respect of it or

168

any of its directors, controllers, partners (or

general partners, in the case of a limited

partnership, or members, in the case of a limited

liability partnership) or employees,

perpetrated at a time when it held a fiduciary licence, the time limit of three years

specified in subsection (3) shall5) does not apply.

(57) A licensed fiduciary, or former licensed fiduciary or auditor

who contravenes this sectionany provision of subsection (1), (2) or (3) is guilty of an

offence.

(7) An auditor who without reasonable excuse contravenes any

provision of subsection (4) is guilty of an offence.


conditions as it thinks fit, exempt any licensed fiduciary, former licensed fiduciary or

auditor or class, description or category of licensed fiduciary, former licensed

fiduciary or auditor from the application of all or any of the requirements of

subsection (1), (2), (3) or (4), either generally or in any particular case or class of case,

and whether before or after the circumstance, event or occasion in question.

Communications to Commission by auditors, etc., to Commission.

3132. (1) No duty to which –

(a) an auditor of a licensed fiduciaryor prospective auditor,

or

(b) a person appointed to make a report under section 5(6)

169

or 23(1)(b),as a skilled person pursuant to the provisions

of section 27,

is subject is contravened by reason of his communicating in good faith to the

Commission, whether or not in response to a request made by it, any information or

opinion on a matter to which this section applies and which is relevant to any function

of the Commission under this Law.

(2) In relation to It is the duty of –

(a) an auditor or prospective auditor, or

(b) a person appointed to make a report under section 5(6)

or as a skilled person pursuant to the provisions of

section 27,

to communicate to the Commission matters to which this section applies and which

the auditor or prospective auditor or that person has reasonable cause to believe is, or

is likely to be, of material significance for determining either -

(i) whether a person is a fit and proper person to

carry on by way of business any regulated

activities or to be the holder of a supervised role

in respect of a licensed fiduciary, or

(ii) whether the Commission should perform its

functions under the provisions of this Law or

any other enactment for the purposes of the

protection of the public or the reputation of the

170

Bailiwick as a finance centre.

(3) In relation to an auditor or prospective auditor, this section

applies to any matter of which he becomes aware in his capacity as auditor or

prospective auditor and which relates to the business or affairs of –

(a) thea licensed fiduciary,

(b) wherean associated party of the licensed fiduciary is a

company, any associated company thereof, or

(c) where the licensed fiduciary is a partnership or limited

liability partnership, any company of which a partner in

that partnership or a member of that limited liability

partnership is a controller.

(34) In relation to a person appointed to make a report under section

5(6) or 23(1)(b),as a skilled person pursuant to the provisions of section 27, this section

applies to any matter of which he becomes aware in his capacity as the person

makingappointed to make the report or as a skilled person and which –relates to the

business or affairs of -

(a) relates to the business or affairs of the person or

bodyentity in relation to which his report is made or –,

(i) where that person or body is a company, (b) any

associated company thereofparty of that person or entity, or

(iic) where that person or bodyentity is a partnership or

171

limited liability partnership, any company of which a

partner in that partnership or a member of that limited

liability partnership is a controller,.

(b) if his report relates to an associated company of a

company, relates to the business or affairs of that

second-mentioned company.

(4 (5) If it appears to the Commission, after

consultation with the Policy Council Committee, the Policy and Finance Committee

of the States of Alderney and the Policy and Performance Committee of the Chief Pleas

of Sark, that any accountants or class thereof or other persons of a class or description

referred to whomin subsection (1) applies)(a) or (b) are not subject to satisfactory rules

or guidance made or issued by a professional body specifying circumstances in which

matters are to be communicated to the Commission as mentioned in that subsection,

(1), the Commission may, after consultation as aforesaid in relation to the views of

such bodies as appear to the Commission to represent the interests of accountants or

other such persons and licensed fiduciaries, by regulationrule specify circumstances

in which matters are to be communicated to the Commission as mentioned in

subsection (1); and it shall beis the duty of any accountant or other such person to

whom the regulationsrules apply to communicate a matter to the Commission in the

circumstances specified in the regulationsrules.

(56) This section applies in relation to the auditor or prospective

auditor of a former licensed fiduciary as it applies in relation to the auditor of a

licensed fiduciary.

(7) In this section a "prospective auditor" means an auditor who

has communicated or has had dealings with a person with a view to becoming auditor

172

to that person, but who has not been appointed or accepted appointment as auditor

to that person.

Power to request meetings with auditors, actuaries, etc.

33. (1) The Commission may, whenever it thinks fit, and –

(a) with a view to the performance of its functions, or

(b) if it considers it necessary or desirable to do so in the

interests of the public or the reputation of the Bailiwick

as a finance centre,

by notice in writing request that a meeting be held, at such time, place and for such

purposes as may be mutually agreed, with the auditors, actuaries, associated parties

or officers of, or holders of supervised roles in respect of, a licensed fiduciary or former

licensed fiduciary (“the client”) at which the Commission may discuss any aspect of

the operation, regulation or licensing of the client.

(2) In the course of a meeting under this section the Commission or

any person acting for and on behalf of the Commission -

(a) may request the provision of such information and

documents, in such form, and

(b) may put such questions and request such explanations,

as the Commission or that person thinks fit, being information, documents, questions

and explanations relevant to the purposes mentioned in subsection (1)(a) and (b).

173

(3) Where a client or any person upon whom a notice is served

under subsection (1) fails to co-operate with the Commission or any person acting for

and on behalf of the Commission when performing or attempting to perform their

functions for the purposes of this section (whether by declining to reach agreement as

to the timing or scope of a meeting under this section, or by failing to provide an

authority, in whatever form reasonably required, to any persons in order that they

may freely discuss matters with the Commission at such a meeting, or by failing to

provide any information or document or to answer any question or give any

explanation, or otherwise), that failure may be taken into account by the Commission

in performing its functions.

(4) For the avoidance of doubt, a meeting (and all ancillary,

incidental and supplementary communications and proceedings) may be requested,

arranged and conducted, and other requests and requirements may be made or

imposed, by the Commission pursuant to this section without the knowledge,

presence, authority or consent of the client in question.

(5) The Commission may direct a person to whom a notice is given

under subsection (1) that he must not, for such period (which may be indefinite) as the

Commission may specify -

(a) inform, or cause or permit to be informed, the client -

(i) that the notice has been given, or

(ii) of the fact or content of a meeting requested or

other request made under the provisions of this

section or of anything said, disclosed or

otherwise done or omitted to be done pursuant

174

to such a meeting or request, or

(b) disclose, or cause or permit to be disclosed, to any

person (including the client) any information or matter

which is likely to prejudice -

(i) the inquiry to which the notice relates, or

(ii) the performance by the Commission of its

functions,

and a person who fails to comply with such a direction is guilty of an offence unless

he can show -

(A) that he took all reasonable precautions

and exercised all due diligence to avoid

the commission of the offence by himself

and by any person under his control, or

(B) in the case of an offence under paragraph

(b), that he did not know or suspect that

the disclosure was likely to be prejudicial

to the inquiry or to the performance by

the Commission of its functions.

(6) A request made under the provisions of this section has effect

and may be acted upon notwithstanding any obligation as to confidentiality or other

restriction upon the disclosure of information imposed by statute, contract or

otherwise; and, accordingly, the obligation or restriction is not contravened by the

175

making of a disclosure, or by any other act or omission, pursuant to such a request.

(7) Any obligation imposed by statute, contract or otherwise

requiring a person to whom a notice is given under subsection (1) -

(a) to inform or seek the permission of another person

before -

(i) agreeing to, arranging or conducting a meeting

pursuant to the provisions of this section, or

(ii) complying with a request made under the

provisions of this section, or

(b) to inform another person of -

(i) the fact or content of such a meeting or request,

or

(ii) anything said, disclosed or otherwise done or

omitted to be done pursuant to such a meeting

or request,

is of no effect.

(8) A statement made by a person in response to a request made

under this section -


176



proceedings except -

-

(A) an offence under section 109(1) of the

Enforcement Powers Law (but only in

relation to a request made under this

section),






(C) perjury, or


(designated administrators, designated trustees or custodians, 9)

The provisions of this section are in addition to and not in derogation from the

other provisions of this Law.

Making of rules, codes and guidance

Rules of the Commission.

177

Rules of the Commission.

31A 34. The Commission may make rules in relation to the carrying on

of regulated activities and the carrying on thereof by licensed fiduciaries and generally

as to the conduct of, and the manner in which licensed fiduciaries conduct, or hold

themselves out as conducting, their business.

Particular matters that may be covered by rules.

31B35. Rules under section 31A34 may, without limitation –

(a) set out general conditions applicable to licensed

fiduciaries (and accordingly make provision for matters

in respect of which conditions may be imposed under

section 98),

(b) prescribe the manner in which licensed fiduciaries must

conduct, govern, manage and operate their business (,

and this includes, without limitation, matters relating to

corporate governance, internal controls and reporting,

the holding of client assets, financial resources, the

calculation of technical provisions and capital

requirements),-

(i) corporate governance,

(ii) internal controls and reporting,

client assets and monies, including, without limitation -

(A) the holding (whether on trust or on any

other basis or in any other manner or

178

capacity), management, payment,

attribution, separation and safeguarding

thereof, including the holding thereof on

trust, and

(B) in the event of insolvency, liquidation,

dissolution, winding up, cessation,

deregistration, receivership,

administration or administration

management, the priorities and

preferences to be accorded by law

thereto,

(iv) the outsourcing of functions,

(v) the provision of particulars in respect of

regulated activities being carried on including,

without limitation, regulated activities in

relation to pension schemes and gratuity

schemes,

(vi) insurance cover of any class or description,

(vii) financial resources,

(viii) business assets,

(ix) technical provisions,

179

(x) requirements in respect of capital, capital

resources, funds and liquidity, and

(xi) the calculation, maintenance and approval of

anything described in subparagraphs (vii) to (x),

(c) prohibit licensed fiduciaries from carrying on, or

holding themselves out as carrying on, regulated

activities –

(i) of any specified class or description,

(ii) of a class or description, on a scale or in a manner

other than that specified in a notice served on

them by the Commission, or

(iii) in relation to persons of a specified class or

description or persons other than those of a

specified class or description,

(d) impose requirements (as to time, frequency, manner or

otherwise) in relation to the exercise by licensed

fiduciaries of any discretionary powers afforded to

them by clients,

(e) require licensed fiduciaries to employ persons of

specified descriptions, and to have at their disposal

specified resources, in connection with the carrying on

of any regulated activity, and specify the powers and

180

duties of persons so employed,

(f) control the relationship between licensed fiduciaries

and their servants and agents and, without limitation, -

(i) require licensed fiduciaries to impose and

enforce restrictions on the activities carried on

by their servants and agents,

(ii) enable or require information obtained in the

course of carrying on any class or description of

the regulated activities of a licensed fiduciary to

be withheld from persons involved in carrying

on any other class or description of the regulated

activities of that licensed fiduciary,

(g) regulate or prohibit the carrying on of any other

business in conjunction with any class or description of


(h) require specified information to be given in the form

and manner and at the time specified by or under the

rules –

(i) to the Commission,

(ii) to the public, or

(iii) to any prescribed class or description of persons,

181

(i) require licensed fiduciaries to make provision for the

protection of clients in the event of the cessation of any

business or any class or description of business carried

on by them,

(j) impose requirements as to the places and manner in

which, and the times during which, fiduciary licences

are to be displayed or available for inspection by the

public,

(k) make provision as to the settlement of disputes,

(l) require the public disclosure by licensed fiduciaries of

information of such class or description, at such times

and intervals and in such form and manner as the rules

may specify, and this includes, without limitation –

(i) information on the financial position and

financial performance of licensed fiduciaries,

(ii) information on the basis, methods and

assumptions on which any information is

prepared,

(iii) information on risk exposures and the

management thereof, and

(iv) information on management and corporate

182

governance, and

(m) make provision as to the dealings and relationship of

licensed fiduciaries with -

(i) other licensed fiduciaries,

(ii) other persons carrying on regulated activities,

clients and the Commission.

(iii) other persons or bodies holding a licence,

authorisation or registration under, or carrying

on business regulated by, the provisions of the

regulatory Laws,

(iv) clients and potential clients of persons described

in subparagraphs (i) to (iii), and

(v) the Commission,

(n) impose on licensed fiduciaries obligations to ensure

compliance by them, their servants and agents and

other persons of a class or description prescribed by the

rules with the provisions of this Law,

(o) make provision otherwise as to the licensing, resources

and duties of licensed fiduciaries, and

(p) make provision governing applications for, and the

183

issue and validity of, and otherwise in respect of,

fiduciary licences and other relevant documents,

including (without limitation) provision –

(i) prescribing the information to be furnished by

an applicant for a relevant document, and the

manner in which that information is to be

verified,

(ii) prescribing the form and content of relevant

documents,

(iii) as to the renewal of relevant documents,

(iv) prescribing minimum requirements (as to

capital, solvency, management, staff, resources

and any other matter referred to in paragraph

(b)) to be attained by an applicant for a relevant

document,

and in this paragraph "relevant document" means a

licence, authorisation, registration, permission, consent,

exemption, dispensation, concession, authority,

declaration, statement, notice, direction or other

document sought from or granted or given by the

Commission under the the provisions of or for the

purposes of this Law.

General provisions as to rules

184

Making, publication and effect of contravention of rules.

31C. (1) Before making any rules under this Part of this Law the

Commission shall, unless it considers that the delay involved would be prejudicial to

the interests of clients or potential clients, publish proposals for the rules in such

manner as the Commission considers best calculated to bring them to the attention of

persons likely to be affected by them and the public in general, and shall consider any

representations made to the Commission concerning those proposals.

(2) Rules

this Part of this Law shall be made by an instrument in writing which shall –

(a) specify the provisions of this Law under which the rules

are made, and

(b) be made available to the public in such manner, and on

such terms as to payment or otherwise, as the

Commission considers appropriate.

(3) Without prejudice to any other provision of this Law as to the

consequences of any such contravention, a contravention by any person of a rule

under section 31A does not of itself render him liable to any proceedings, but –

(a) the Commission, in the exercise of its powers conferred

by or under –

(i) this Law or any Ordinance, regulation or rule

185

made under it, or

(ii) the regulatory Laws,

may take the rule and the contravention thereof into

account in determining whether and in what manner to

exercise those powers, and

(b) in any legal proceedings (criminal or otherwise),

whether or not under this Law, the rule is admissible in

evidence, and if the rule appears to the court or other

tribunal before which the proceedings are being

conducted to be relevant to any question arising in the

proceedings then the rule may be taken into account in

determining that question.

Miscellaneous powers of Commission

Repayment of monies from unauthorised business.

32. (1) If on the application of the Commission it appears to the Court

that a person has carried on by way of business any regulated activity in contravention

of this Law, the Court may –

(a) order him and any other person who appears to the

Court to have been knowingly concerned in the

contravention, forthwith or at such time as the Court

may direct, to repay monies accepted from, or paid over

(whether to him or to any other person) by, clients in the

course of his so carrying on that regulated activity, or

186

(b) appoint a receiver (upon such terms and conditions and

with such functions as the Court may direct) to recover

those monies.

(2) If on the application of the Commission it appears to the Court

that profits have accrued to a person as a result of any regulated activity having been

carried on by way of business in contravention of this Law, the Court may order him

to pay to Her Majesty's Sheriff, or may appoint a receiver (upon such terms and

conditions and with such functions as the Court may direct) to recover from him, such

sum as appears to the Court to be just having regard to the profits appearing to the

Court to have accrued to him.

(3) In deciding whether and on what terms to make an order under

this section the Court shall have regard to the effect that payment or repayment

pursuant to the order would have on the solvency of the person concerned and on his

ability to carry on his business in a manner satisfactory to his creditors.

(4) Any amount paid to Her Majesty's Sheriff or recovered by a

receiver pursuant to subsection (2) shall be distributed among such persons as the

Court may direct, being –

(a) persons appearing to the Court to have been the clients

in respect of whom the regulated activity as a result of

which the profits accrued was carried on, or

(b) such other persons as the Court thinks just.

(5) On an application under subsection (2) the Court may require

187

the person concerned to furnish such accounts or other information as it may require

for determining whether and if so what profits have accrued to him as mentioned in

that subsection and for determining how any amounts are to be distributed under

subsection (4); and the Court may require any such accounts or information to be

verified in such manner as it may direct.


(a) where the person against whom the order under this

section is sought is within the jurisdiction of the Court

of Alderney or the Court of the Seneschal, the Court of

Alderney or, as the case may be, the Court of the

Seneschal,

(b) in any other case, the Royal Court.

(7) In this section "Her Majesty's Sheriff" means –

(a) where the order was made by the Court of Alderney, the

Clerk of the Court of Alderney,

(b) where the order was made by the Court of the

Seneschal, the Prévôt,

(c) where the order was made by the Royal Court, Her

Majesty's Sheriff.

Injunctions to restrain unlawful business, etc.

33. (1) If on the application of the Commission the Court is satisfied

188

that –

(a) there is a reasonable likelihood that a person will

contravene section 1, 36, 37 or 40, a direction under

section 12, 17 or 20 or a regulation under section 20, or

(b) a person may have been guilty of such a contravention

and that there is a reasonable likelihood that the

contravention will continue or be repeated,

the Court may grant an injunction restraining the contravention.

(2) If on the application of the Commission the Court is satisfied

that a person may have been guilty of a contravention mentioned in subsection (1)(a),

the Court may grant an injunction restraining him or any of his associates or

controllers from disposing of or otherwise dealing with any assets or class or

description of assets while the suspected contravention is investigated.

(3) An injunction under subsection (1) or (2) may be granted on

such terms and conditions, and may contain such incidental, ancillary, consequential

or supplementary provision, as the Court thinks fit including, without prejudice to the

generality of the foregoing, provision for the appointment of a receiver or other person

to exercise such powers as the Court may consider necessary or expedient for the

purpose of ensuring that any assets subject to the injunction are not disposed of or

otherwise dealt with in contravention of the injunction, including powers to locate,

ascertain, hold, gather in, sequester or take possession or control of any such assets.

(4) An application by the Commission for an injunction under this

section may, with the approval of the Court, and on such terms as the Court may

189

direct, be made ex parte.


(a) where the person against whom the injunction under

this section is sought is within the jurisdiction of the



the Seneschal,


(6) The powers conferred upon the Royal Court by this section are

in addition to and not in derogation from the powers conferred by the Law Reform

(Miscellaneous Provisions) (Guernsey) Law, 1987l; and the provisions of Parts I and

V of that Law (apart from section 1(1) and (7)) shall apply in relation to injunctions of

the Royal Court under this section.

Winding-up on application of Commission.

34. The Royal Court or, in the case of an Alderney company, the Court of

Alderney, on the application of the Commission under this section, may order the

winding-up of a Bailiwick company –

(a) which is a licensed fiduciary or former licensed

fiduciary, or

l Ordres en Conseil Vol. XXX, p. 145.

190

(b) whether licensed or not, which is guilty of any such

contravention as is described in section 33(1)(a),

in cases where –

(i) the company is unable to pay its debts within the

meaning of section 95 of the Companies

(Guernsey) Law, 1994m or, in the case of an

Alderney company, section 126 of the

Companies (Alderney) Law, 1994n,

(ii) the company has defaulted in an obligation to

pay any sum due and payable in respect of or

pursuant to the carrying on by the company, by

way of business, of a regulated activity, or

(iii) the Royal Court or, in the case of an Alderney

company, the Court of Alderney is of the

opinion that it is just and equitable that the

company should be wound up,

and where such an order is made, the provisions of the Companies (Guernsey) Law,

1994 or, in the case of an Alderney company, the Companies (Alderney) Law, 1994

shall apply accordingly..

35. (1) The Commission, after consultation with –

m Order in Council No. XXXIII of 1994; No. XIV of 1996. n Order in Council No. XXXIV of 1994.

191

(a) the Policy Council , the Policy and Finance Committee

of the States of Alderney and the Policy and

Performance Committee of the Chief Pleas of Sark, and

(b) such other persons as appear to the Commission to be

appropriate including, without limitation, persons

representative of that part of the Bailiwick's financial

services industry which carries on regulated activities,

may issue such codes of practice as the Commission thinks necessary –

(i) for the purpose of providing guidance as to the

duties, requirements and standards to be

complied with and the procedures (whether as

to identification, record-keeping, internal

reporting and training or otherwise) and best

practices to be observed by persons carrying on

by way of business any regulated activity,

(ii) generally for the purposes of this Law.

(2) A code of practice under this section may contain such

transitional or savings provisions as appear to the Commission to be necessary or

expedient.

(3) The Commission may, after consultation as mentioned in

subsection (1), revise the whole or any part of a code of practice issued under this

section and issue that revised code.

192

(4) A contravention by any person of a provision of a code of

practice under this section shall not of itself render him liable to any proceedings; but

–

(a) the Commission, in the exercise of its powers conferred

by or under the provisions of –

(i) this Law or any Ordinance, regulation or rule

made under it, or


may take the provision of the code and the

contravention thereof into account in determining

whether and in what manner to exercise those powers,

and

(b) in any legal proceedings, whether or not under this Law,

the provision of the code shall be admissible in

evidence, and if the provision appears to the court or

other tribunal before which the proceedings are being

conducted to be relevant to any question arising in the

proceedings then the provision may be taken into

account in determining that question.

PART II HOLDING OUT, OFFERING TO CARRY ON BUSINESS,

DESCRIPTIONS & NAMES

193

Restrictions on use of certain descriptions and names.

36. (1) No person other than –

(a) a licensed fiduciary, or

(b) a person who has first obtained the permission of the

Commission in that behalf under section 38 and who is

acting in accordance with the conditions of that

permission,

shall so describe himself, or so hold himself out, as to indicate or reasonably be

understood to indicate (whether in English or any other language) that he is a licensed

fiduciary or –

(i) in the case of a person other than a Bailiwick

company, that he is carrying on by way of

business, in or from within the Bailiwick, any


(ii) in the case of a Bailiwick company, that it is

carrying on by way of business, in or from

within any place whatsoever, any regulated

activities.

(2) No person other than –


194

(b) a person who has first obtained the permission of the

Commission in that behalf under section 38 and who is

acting in accordance with the conditions of that

permission,

shall use any name which indicates or may reasonably be understood to indicate

(whether in English or any other language) that he is a licensed fiduciary or –

(i) in the case of a person other than a Bailiwick

company, that he is carrying on by way of

business, in or from within the Bailiwick, any


(ii) in the case of a Bailiwick company, that it is

carrying on by way of business, in or from

within any place whatsoever, any regulated

activities.

(3) No person other than a Bailiwick company shall falsely state, or

do anything which falsely indicates, that he is entitled although not a licensed

fiduciary to carry on by way of business, in or from within the Bailiwick, any regulated

activities.

(4) No Bailiwick company shall falsely state,

or do anything which falsely indicates, that it is entitled

although not a licensed fiduciary to carry on by way of

business, in or from within any place whatsoever, any

regulated activities.

195

(5) A person who contravenes any provision of this section is guilty

of an offence.

Offering to carry on business.

37. (1) No person, other than a Bailiwick company or a licensed

fiduciary, shall offer to carry on, or hold himself out as being willing to carry on, by

way of business, in or from within the Bailiwick, any regulated activities.

(2) No Bailiwick company other than a licensed fiduciary shall

offer to carry on, or hold itself out as being willing to carry on, by way of business, in

or from within any place whatsoever, any regulated activities.


of an offence.

Permission to use certain descriptions or names.

38. (1) A person wishing to obtain permission for the purposes of

section 36 shall apply in that behalf to the Commission.

(2) An application under subsection (1) shall be made in such form

and manner and shall be accompanied by such information and documents as the

Commission may require and by such fee as may be prescribed by regulations of the

States of Guernsey Policy Council made after consultation with the Policy Council, the

Policy and Finance Committee of the States of Alderney and the Policy and

Performance Committee of the Chief Pleas of Sark; and the Commission may at any

time after receipt of the application require the applicant to furnish such additional

information and documents as it considers necessary or desirable.

(3) The Commission may, upon receipt of an application under

196

subsection (1), grant the application unconditionally or subject to such conditions as

it may consider necessary or expedient, or refuse the application.

(4) Where the Commission decides –

(a) to refuse an application under subsection (1),

(b) to revoke a permission granted under that subsection,

or

(c) to impose, vary or rescind any condition in respect of

any such permission,

it shall give written notice of that decision to the applicant setting out particulars of


Commission may object to certain names.

39. (1) An applicant for a fiduciary licence shall give notice in writing

to the Commission of its name and of any name it is using or proposing to use for the

purposes of or in connection with any business carried on by it and the Commission

may, by notice in writing served upon it, object to that name.

(2) A licensed fiduciary which proposes to change its name or any

name it uses for the purposes of or in connection with any business carried on by it,

or to use a name for the purposes of or in connection with any business carried on by

it, shall give notice in writing to the Commission of the proposed name and the

Commission may, within a period of 28 days immediately following the receipt by it

of such notice, by notice in writing served upon the licensed fiduciary object to the

proposed name.

197

(3) The Commission may also give notice objecting to a name in

cases where the person in question failed to give notice to the Commission in

accordance with subsection (1) or (2).

(4) The Commission shall not give notice objecting to a name under

subsection (1), (2) or (3) unless it considers that the name is misleading to the public

or otherwise undesirable.

(5) For the purposes of this section the whole of the name in

question shall be taken into account in deciding whether it is misleading or

undesirable.

(6) Where as a result of a material change in circumstances since

the time when notice was given to the Commission under subsection (1) or (2) or as a

result of further information becoming available to the Commission since that time, it

appears to the Commission that a name to which it might have objected under that

subsection gives so misleading an indication of the nature of the activities of the

person in question as to be likely to cause harm to the public, the Commission may,

by notice in writing served upon that person, object to that name.

(7) A notice to be given to the Commission under this section shall

be given in such manner and form as the Commission may specify and shall be

accompanied by such information and documents as the Commission may require.

(8) A notice of objection under this section shall give particulars of


Offences in relation to objections to names.

198

40. (1) Where the Commission gives notice objecting to a name under

section 39, the person upon whom the notice was served shall not use or cause or

permit to be used the name for the purposes of or in connection with any business

carried on by him after the notice takes effect.

(2) A notice of objection –

(a) under section 39(1), (2) or (3), may take immediate

effect,

(b) under section 39(6), takes effect at the end of the period

within which, under section 19, an appeal can be

brought or, if an appeal is brought within that period,

when the appeal is determined or withdrawn.


of an offence.

Incorporation and change of name of companies.

41. (1) Without prejudice to the provisions of any other enactment –

(a) no application under the Companies (Guernsey) Law,

1994o or the Companies (Alderney) Law, 1994p to the

Royal Court or (as the case may be) the Registrar for the

registration of the memorandum of a company in the

o Order in Council No. XXXIII of 1994; No. XIV of 1996. p Order in Council No. XXXIV of 1994.

199

proposed name of which there appears the word trust,

trustee, fiduciary, executor, nominee or any cognate

expression, whether in English or any other language,

shall be granted unless the applicant establishes that the

permission of the Commission in that behalf has been

obtained under section 38 and any conditions subject to

which that permission was granted have, so far as

practicable, been complied with,

(b) no application under the Companies (Guernsey) Law,

1994 or the Companies (Alderney) Law, 1994 to the

Royal Court or (as the case may be) the Court of

Alderney for an order confirming a change of company

name by the inclusion (whether in English or any other

language) of the word trust, trustee, fiduciary, executor,

nominee or any cognate expression shall be granted

unless the applicant establishes that –

(i) it is a licensed fiduciary, or

(ii) it has obtained the permission of the

Commission in that behalf under section 38 and

any conditions subject to which that permission

was granted have, so far as practicable, been

complied with,

(c) no such application for the registration of the

memorandum of a company or for an order confirming

a change of company name shall be granted where a

200

notice of objection under section 39 is in force in respect

of the proposed name.

(2) The Commission may, after consultation with the Policy

Council, the Policy and Finance Committee of the States of Alderney and the Policy

and Performance Committee of the Chief Pleas of Sark, by regulation amend

subsection (1) by adding any word to, or removing any word from, the list of words

the use of which in the name or proposed name of a company is for the time being

regulated by that subsection.

Applications by Commission for change of company name.

42. (1) Where a Bailiwick company other than –


(b) a company which has first obtained the permission of

the Commission in that behalf under section 38 and

which is acting in accordance with the conditions of that

permission,

has a company name which indicates or may reasonably be understood to indicate

(whether in English or any other language) that it is a licensed fiduciary or that it is

carrying on by way of business, in or from within any place whatsoever, any regulated

activities, the Royal Court or, in the case of an Alderney company, the Court of

Alderney may, on the application of the Commission, direct the company to change

its name within such period and subject to such penalty as the Royal Court or (as the

case may be) the Court of Alderney may direct.

(2) Where a Bailiwick company other than –

201


(b) a company which has first obtained the permission of

the Commission in that behalf under section 38 and

which is acting in accordance with the conditions of that

permission,

applies to the Royal Court or, in the case of an Alderney company, to the Court of

Alderney for an order confirming a change of company name to a name which

indicates or may reasonably be understood to indicate (whether in English or any

other language) that the company is a licensed fiduciary or that it is carrying on by

way of business, in or from within any place whatsoever, any regulated activities, the

Royal Court or (as the case may be) the Court of Alderney may refuse the application.

(3) A company which fails to comply with any provision of a

direction under subsection (1) is, without prejudice to any penalty specified in the

direction –

(a) guilty of an offence, and

(b) liable to be wound up on the application of the

Commission under section 94 of the Companies

(Guernsey) Law, 1994q or, in the case of an Alderney

company, section 125 of the Companies (Alderney)

q Order in Council No. XXXIII of 1994; No. XIV of 1996.

202

Law, 1994r.

(4) The provisions of this section are without prejudice to the

provisions of any other enactment.

PART III DISCLOSURE OF INFORMATION

Restrictions on disclosure of information.

43. (1) Subject to the provisions of section 44 –

(a) no person who under or for the purposes of this Law

receives information relating to the business or other

affairs of any person,

(b) no person who obtains any such information directly or

indirectly from a person who has so received it,

shall disclose the information without the consent of the person to whom it relates and

(if different) the person from whom it was so obtained.

(2) A person who discloses information in contravention of this

section is guilty of an offence.

Cases where disclosure is permitted.

44. Section 43 does not preclude –

r Order in Council No. XXXIV of 1994.

203

(a) the disclosure of –

(i) information which at the time of disclosure is or

has already been made available to the public

from other sources, or

(ii) information in the form of a summary or

collection of information so framed as not to

enable information relating to any particular

person to be ascertained from it,

(b) the disclosure of information for the purpose of

enabling or assisting the Commission to discharge its

functions conferred by or under this Law,

(c) without prejudice to the generality of paragraph

(b), the disclosure of information by the

Commission to the auditor of a licensed

fiduciary or former licensed fiduciary if it

appears to the Commission that the disclosure

would enable or assist the Commission to

discharge its functions conferred by or under

this Law or would otherwise be in the interest of

the public,

(d) where, in order to enable or assist it to discharge its

functions conferred by or under this Law, the

Commission considers it necessary to seek advice from

a qualified person on any matter of law, accountancy or

204

valuation or any other matter requiring the exercise of

professional skill, the disclosure by the Commission to

that person of such information as appears to the

Commission to be necessary to ensure that he is

properly informed as to the matters on which his advice

is sought,

(e) the disclosure by the Commission of information in the

interests of clients or in the public interest,

(f) the disclosure of information for the purpose of

enabling or assisting a relevant supervisory authority in

a place outside the Bailiwick to exercise its functions,

(g) the disclosure of information in compliance with, or for

the purposes of enabling or assisting a person to comply

with, any requirement imposed by or under this Lawor

any Ordinance, regulation or rule made under it,

(h) the disclosure of information –

(i) for the purposes of the investigation, prevention

or detection of crime, or

(ii) with a view to the instigation of or otherwise for

the purposes of any criminal proceedings,

whether under this Law or otherwise,

205

(i) the disclosure of information in connection with any

other proceedings arising out of this Law,

(j) the disclosure of information with a view to the

instigation of, or otherwise for the purposes of,

any disciplinary proceedings relating to the

exercise of his professional duties by an auditor

of a licensed fiduciary or former licensed

fiduciary or by an accountant or other person

nominated or approved for the purposes of

section 5(6) or 23(1)(b) or appointed under

section ,

(k) the disclosure by the Commission to Her

Majesty's Procureur or an officer of police of

information obtained under sections 23 to 27 or

information in the possession of the Commission

as to any suspected offence in relation to which

the powers conferred by those sections are

exercisable,

(l) where information is disclosed to an officer of police

under paragraph (k), the disclosure of that information

by an officer of police for the purposes of an

investigation or prosecution either in the Bailiwick or,

with the prior consent of Her Majesty's Procureur to

such disclosure, elsewhere,

(m) the disclosure of information to a person or body

206

responsible for a scheme for compensating clients or

investors (whether in the Bailiwick or elsewhere) –

(i) if it appears to the Commission that the

disclosure would enable or assist the recipient of

the information or the Commission to discharge

its functions, and

(ii) if the recipient has given to the Commission a

written undertaking that the information will

not be further disclosed without the prior

consent of the Commission, or

the disclosure of information by the Commission for the

purposes or in the circumstances described in

section 21(2) of the Financial Services

Commission (Bailiwick of Guernsey) Law,

1987s.

Information supplied by relevant overseas authority.

45. (1) Section 43 applies also in relation to information supplied to the

Commission for the purposes of its functions under this Law by a relevant supervisory

authority in a place outside the Bailiwick.

(2) Information described in subsection (1) may be disclosed only

–

s Ordres en Conseil Vol. XXX, p. 243; section 21(2) was amended by Order in Council No. II of 1997.

207

(a) with the consent of the persons whose consent is

referred to in section 43(1), or

(b) for the purposes or in the circumstances described in

section 44(a), (b) or (h), or

(c) with the consent of the relevant supervisory authority

by which the information was supplied, for the

purposes or in the circumstances described in any other

paragraph of section 44.

PART IV

OFFENCES AND PENALTIES

False or misleading information.

46. (1) A person who –

(a) in connection with an application for a fiduciary licence

under this Law,

(b) in purported compliance with a requirement imposed

by or under any provision of this Law or of any

Ordinance, regulation or rule made under it, or

(c) otherwise than as mentioned in paragraph (a) or (b) but

in circumstances in which he intends, or could

reasonably be expected to know, that the statement,

information or document provided by him would or

might be used by the Commission for the purpose of

208

exercising its functions conferred by or under this Law

–

(i) makes a statement which he knows or has

reasonable cause to believe to be false, deceptive

or misleading in a material particular,

(ii) dishonestly or otherwise, recklessly makes a

statement which is false, deceptive or

misleading in a material particular,

(iii) produces or furnishes or causes or permits to be

produced or furnished any information or

document which he knows or has reasonable

cause to believe to be false, deceptive or

misleading in a material particular, or

(iv) dishonestly or otherwise, recklessly produces or

furnishes or recklessly causes or permits to be

produced or furnished any information or

document which is false, deceptive or

misleading in a material particular,


(2) A licensed fiduciary which fails to provide the Commission

with any information in its possession knowing or having reasonable cause to believe

–

209

(a) that the information is relevant to the exercise by the

Commission of its functions under this Law in relation

to the licensed fiduciary, and

(b) that the withholding of the information is likely to result

in the Commission being misled as to any matter which

is relevant to and of material significance to the exercise

of those functions in relation to the licensed fiduciary,


Penalties.

47. (1) A person guilty of an offence under section 1(3), 20(11), 23(12),

24(6), 25(3), 27(6), 28, 36(5), 37(3), 40(3), 43(2) or 46(1) is liable –

(a) on summary conviction, to a fine not exceeding level 5

on the uniform scale, to imprisonment for a term not

exceeding months or to both,

(b) on conviction on indictment, to a fine, to imprisonment

for a term not exceeding 2 years or to both.

(2) A person guilty of an offence –

(a) under section 21(4), 22(3), 29(4) or 30(5) is liable on

summary conviction to a fine not exceeding level 5 on

the uniform scale,

(b) under section 9(5), 12(5), 16, 20(3), 42(3)(a) or 46(2) is

210

liable on conviction to a fine.

(3) In relation to offences tried before the Court of Alderney or the

Court of the Seneschal, the penalties stipulated by subsections (1)(a) and (2)(a) shall

be applicable notwithstanding the provisions of section 13 of the Government of

Alderney Law, 1987t and section 23 of the Reform (Sark) Law, 1951u.

(4) Where an offence under this Law involves a public display or

exhibition of any name or description, there shall be deemed to be a fresh offence on

each day on which the display or exhibition continues.

Criminal liability of directors, abettors, etc.

48. (1) Where an offence under this Law, or any Ordinance, regulation

or rule made under it, is committed by a company and is proved to have been

committed with the consent or connivance of, or to be attributable to any neglect on

the part of, any director, chief executive, controller, manager, secretary or other similar

officer of the company or any person purporting to act in any such capacity, he as well

as the company is guilty of the offence and may be proceeded against and punished

accordingly.

(2) Where the affairs of a company are managed by its members,

subsection (1) applies to a member in connection with his functions of management

as if he were a director.

t Ordres en Conseil Vol. XXX, p. 37; section 13 was amended by Orders in Council No. VI of 1989 and No. IX of 1995. u Ordres en Conseil Vol. XV, p. 215; section 23 was substituted by Vol. XXIII, p. 200 and amended by Vol. XXIX, p. 27 and Orders in Council No. VII of 1989 and No. XII of 1991.

211

(3) Without prejudice to the generality of subsection (1), a person

who knowingly and wilfully aids, abets, counsels, causes, procures or commands the

commission of an offence under this Law may be proceeded against and punished as

a principal offender.

Criminal proceedings against unincorporated bodies.

49. (1) Where an offence under this Law, or any Ordinance, regulation

or rule made under it, is alleged to have been committed by an unincorporated body,

proceedings for the offence shall be brought in the name of that body and not in the

name of any of its members and, for the purposes of such proceedings, the service of

any document (including any summons) on that body shall be carried out in

accordance with the provisions of section 53.

(2) A fine imposed on an unincorporated body on its conviction of

an offence under this Law, or any Ordinance, regulation or rule made under it, shall

be paid from the funds of that body.

(3) Where an offence under this Law, or any Ordinance, regulation

or rule made under it, is committed by an unincorporated body and is proved to have

been committed with the consent or connivance of, or to be attributable to any neglect

on the part of –

(a) in the case of a partnership, any partner,

(b) in the case of any other unincorporated body, any officer

of that body who is bound to fulfil any duty whereof the

offence is a breach or, if there is no such officer, any

member of the committee or other similar governing

212

body, or

(c) any person purporting to act in any capacity described

in paragraph (a) or (b),

he as well as the unincorporated body is guilty of the offence and may be proceeded

against and punished accordingly.

Defence of due diligence.

50. In any proceedings for an offence under this Law it shall be a defence

for the accused to prove that he took all reasonable precautions and exercised all due

diligence to avoid the commission of such an offence by himself and by any person

under his control.

Jurisdiction.

51. Without prejudice to any jurisdiction exercisable apart from this

section, proceedings for an offence under this Law (or any Ordinance, regulation or

rule made under it) may be taken, and the offence may for all incidental purposes be

treated as having been committed, in any place in the Bailiwick.

PART V

MISCELLANEOUS AND SUPPLEMENTARY

Verification of information.

52. The Commission may direct that any information, document or

statement provided to it in compliance or purported compliance with any requirement

imposed by or under any provision of this Law or of any Ordinance, regulation or rule

under it shall be verified in such manner as the Commission may reasonably specify;

and any information, document or statement which is not verified in accordance with

213

a direction given under this section shall be deemed for the purposes of that provision

not to have been provided in accordance with the said requirement and the said

requirement shall accordingly be deemed not to have been complied with.

Service of notices.

53. (1) Any document other than a summons to be given or served

under this Law may be given to or served upon –

(a) an individual, by being delivered to him, or by being left

at, or sent by post or transmitted to, his usual or last

known place of abode,

(b) a company with a registered office in the Bailiwick, by

being left at, or sent by post or transmitted to, that office,

(c) a company without a registered office in the

Bailiwick, by being left at, or sent by post or

transmitted to, its principal or last known

principal place of business in the Bailiwick or, if

there is no such place, its registered office or

principal or last known principal place of

business outside the Bailiwick,

(d) an unincorporated body, by being given

to or served on any partner, member, manager,

director or other similar officer thereof in

accordance with paragraph (a), or by being left

at, or sent by post or transmitted to, the body's


214

business in the Bailiwick or, if there is no such

place, its principal or last known principal place

of business elsewhere,

(e) the Policy Council, by being left at, or sent by post or

transmitted to, its principal office in the Bailiwick,

(f) the Commission or its Chairman, by being left at, or sent

by post or transmitted to, the principal office of the

Commission in the Bailiwick,

and in this section –

(i) the expression "by post" means by

registered post, recorded delivery

service or ordinary letter post, and

(ii) the expression "transmitted" means transmitted

by electronic communication, facsimile

transmission or other similar means which

produce a document containing the text of the

communication; in which event the document

shall be regarded as served when it is received.

(2) If a person notifies the Commission of an address for service

within the Bailiwickfor the purposes of this Law, any document other than a summons

to be given to or served upon him may be given or served by being left at, or sent by

post or transmitted to, that address.

215

(3) If service of a document cannot, after reasonable enquiry, be

effected in accordance with this section, the document may be served by being

published on two occasions in La Gazette Officielle.

(4) Subsections (1), (2) and (3) are without prejudice to any other

lawful method of service.

(5) Notwithstanding the provisions of

subsections (1) to (4) and of any other rule of law in

relation to the service of documents, no document to be

given to or served on the Policy Council or the

Commission or its Chairman under this Law shall be

deemed to have been given or served until it is received.

(6) If a person upon whom a document is to be served under this

Law is an infant or person under guardianship, the notice or document shall be served

on his guardian; and if there is no guardian, the Commission may apply to the Court

for the appointment of a person to act as guardian for the purposes of this Law; and

in this subsection the “Court" means –

(a) where the person in respect of whom the guardian is to

be appointed is within the jurisdiction of the Court of

Alderney or the Court of the Seneschal, the Court of

Alderney or, as the case may be, the Court of the

Seneschal,


(7) A document sent by post shall, unless the contrary is shown, be

216

deemed for the purposes of this Law to have been received –

(a) in the case of a document sent to an address in the

United Kingdom, the Channel Islands or the Isle of Man,

on the third day after the day of posting,

(b) in the case of a document sent elsewhere, on the seventh

day after the day of posting,

excluding in each case any non-business day within the meaning of section 1(1) of the

Bills of Exchange (Guernsey) Law, 1958, as amendedv.

(8) Service of any document sent by post shall be proved by

showing the date of posting, the address thereon and the fact of prepayment.

Evidence.

54. (1) In any proceedings, a certificate purporting to be signed on

behalf of the Commission and certifying –

(a) that a particular person or body is or is not a licensed

fiduciary or was or was not a licensed fiduciary at a

particular time,

(b) the date on which a particular person or body

obtained or ceased to hold a fiduciary licence,

v Ordres en Conseil Vol. XVII, p. 384; Vol. XXIV, p. 84; No. XI of 1993; and No. XIV of 1994.

217

(c) the terms of any conditions imposed in respect of a

particular person's or body's fiduciary licence,

shall be admissible in evidence.

(2) A certificate purporting to be signed as mentioned in subsection

(1) shall be deemed to have been duly signed unless the contrary is shown.

General provisions as to receivers.

55. (1) Where the Court has appointed a receiver under section 32 or

33, the Court may, on the application of the receiver or of any other person appearing

to the Court to have a sufficient interest in the matter, direct any person holding or

having possession or control of any monies, profits or assets in respect of which the

receiver was appointed to give possession of them to the receiver or otherwise to deal

with them, or not to deal with them, in any manner specified by the Court.

(2) Where a receiver appointed under section 32 or 33 takes any

action –

(a) in relation to property which is not property in respect

of which he was appointed, being action which he

would be entitled to take if it were such property, or

(b) in relation to property which is property in respect of

which he was appointed, being action which he is not

entitled to take,

and, in either case, believing and having reasonable grounds for believing that he is

entitled to take that action in relation to that property, he shall not be liable to any

218

person in respect of any loss or damage resulting from his action except in so far as

the loss or damage is caused by his negligence.


(a) where the person against whom the direction under

subsection (1) is sought is within the jurisdiction of the



the Seneschal,


Regulationsas to annual return.

56. (1) The Commission may, after consultation with the Policy and


and the Policy and Performance Committee of the Chief Pleas of Sark, make

regulations

Rules as to annual return.

36. (1) The Commission may make rules requiring the submission by

licensed fiduciaries to the Commission, in such form and manner, at such times or

intervals and in respect of such periods as may be prescribed, of an annual return.

(2) The annual return shall contain such information and shall be

accompanied by such documents as may be prescribed, being information and

documents considered by the Policy and Resources CommitteeCommission to be

necessary for the purposes of –

(a) for the purposes of enabling the Commission to perform

219

its functions under the provisions of this Law or any

Ordinance, regulation or rule under it,

(b) for the purposes of responding to the obligations of the

Bailiwick in relation to international co-operation and

mutual assistance, including without limitation

information and documents relating to financial crime,

money laundering and financing of terrorism,

(c) the protection of the public and in the interests of clients

of licensed fiduciaries, and-

(di) the protectionpublic, or enhancement of

(ii) the reputation of the Bailiwick as a finance

centre.

(3) Information and documents submitted pursuant to

regulationsrules under this section shall be in such form as may be prescribed or, if no

form is prescribed, as the Commission may reasonably require.

(4) Without (but without prejudice to the generalityprovisions of

the foregoing, thesection 49).

(4) The information and documents that regulationsrules under

this section may require to be submitted to the Commission include, without

limitation –

(a) audited accounts and auditors' management

220

letters,

(b) the names of directors, controllers, managers, partners

(or general partners, confirmation that the auditors have

confirmed that no auditors' management letter is

required to be issued),

(b) a statement of income (in the case of the holder of a

personal fiduciary licence),

(c) a limited partnership,a financial statement in respect of

any pension scheme or members, ingratuity scheme in

relation to which regulated activities are being carried

on,

(d) an up to date business plan,

(e) a 12 month financial forecast,

(f) a certificate signed by a prescribed person confirming -

(i) compliance throughout the period covered by

the annual return with the provisions of this

Law, the caseappointed Laws and any other

prescribed enactment,

(ii) that accounts have been prepared and deposited

in accordance with the provisions of a limited

liability partnership) this Law,

221

(g) the names of and other prescribed particulars in respect

of the holders of supervised roles in respect of, or the

officers or employees of, a licensed fiduciary,

(ch) the number of staff employed,

(di) the number of clients, whether in total or whether in

respect of different classes or descriptions of regulated

activity,

(ej) the licensed fiduciary's estimate of the value of liquid

assets under administration.,

(k) such other information and documents as may be

prescribed or as the Commission may determine.

(5) Without prejudice to the generality of the foregoing,

regulationsRules under this section may, without limitation, make provision in

relation to –

(a) the furnishing, keeping and obtaining, by persons of

prescribed descriptions, of information, documents and

records of prescribed classes or descriptions,

(b) the provision of copies of or extracts from, and of

explanations as to, information and documents

submitted to the Commission in accordance with the

regulationsrules,

222

(c) the making of inquiries and the answering of questions

as to annual returns and any information and

documents submitted to the Commission in accordance

with the regulationsrules,

(d) the provision of reports, in such form as may be

specified by the regulationsprescribed or byas the

Commission may determine, by persons who are

accountants or who otherwise have relevant

professional skill and who are nominated or approved

by the Commission,

(e) the payment of any fees to be payable to the

Commission onprescribed by regulations under section

7 in respect of the submission of annual returns,

(f) the sanctions, penalties and remedies for contraventions

of the regulations, including the creation, trial and

punishment of offencesrules, provided that

regulationsrules under this section may not

specifyprescribe criminal sanctions or penalties which

exceed those for the time being specified by section

47(2),,

(g) the service of notices.,

(h) the submission of a single or composite return for

licensed fiduciaries who also hold a licence under any

223

of the regulatory Laws.

(6) In this section "prescribed" means prescribed by the rules.

(6) In this section the expression "prescribed" means prescribed by

regulations under this section.

Limitation of liability.

57. No liability shall be incurred by, or by any Committee of, the States of

Guernsey, the States of Alderney or the Chief Pleas of Sark, or by the Commission, or

by any member, officer or servant of any of the aforesaid, in respect of anything done

or omitted to be done after the commencement of this Law in the discharge or

purported discharge of any function conferred by or under this Law, or any

Ordinance, regulation or rule under it, unless the thing was done or omitted to be

done in bad faith.

Interpretation.

58. (1) In this Law, unless the context otherwise requires –

"accountant" means a person who is qualified for appointment as an

auditor pursuant to section 63(1)(a) or (b) or section 63(6) (as read in

conjunction with any Ordinance thereunder) of the Companies (Guernsey)

Law, 1994w,

"actuary" means a member of the Institute of

Actuaries for England and Wales or the Faculty of

Actuaries for Scotland,

w Order in Council No. XXXIII of 1994; No. XIV of 1996.

224

"advocate" means an Advocate of the Royal Court of Guernsey,

"Alderney" means the Island of Alderney and its dependencies,

"Alderney company" means a company the memorandum and articles

of which are registered in the Register of Companies within the meaning of

section 163(1) of the Companies (Alderney) Law, 1994x,

"associate", in relation to any person, means –

(a) the spouse, child or stepchild of that person,

(b) any company of which that person is a director,

(c) any person who is an employee or partner of that

person,

(d) if that person is a company –

(i) any director or subsidiary of that company, and

(ii) any director or employee of any such subsidiary, and

(e) if that person has with any other person an agreement

or arrangement as to the acquisition, holding or disposal

x Order in Council No. XXXIV of 1994; there are amendments not material to this enactment.

225

of shares or other interests in a company or under which

they undertake to act together in exercising their voting

power in relation to a company, that other person,

"associated company", in relation to a company, shall be construed in

accordance with section 23(5)(a),

"auditor" means, in sections 29(1) and 56(4), a

person who is qualified for appointment as an auditor

pursuant to section 63(1)(a) or (b) or section 63(6) (as

read in conjunction with any Ordinance thereunder) of

the Companies (Guernsey) Law, 1994y and who is

approved by the Commission to audit the accounts of

licensed fiduciaries,

"Bailiff" has the meaning given by section 26(4),

"Bailiwick" means the Bailiwick of Guernsey,

"Bailiwick company" means a Guernsey company or an Alderney

company,

"by way of business" shall be construed in accordance with subsection

(3),

"capital base", in relation to a licensed fiduciary, means the capital base

y Order in Council No. XXXIII of 1994; No. XIV of 1996.

226

determined by the Commission after consultation with the licensed fiduciary;

and any such determination may be varied from time to time,

"chief executive", in relation to a company, means a person who, alone

or jointly with other persons, is responsible under the immediate authority of

the directors for the conduct of the business of the company and, in relation to

a company whose principal place of business is outside the Bailiwick, includes

a person who, alone or jointly with other persons, is responsible for the

conduct of its business in the Bailiwick,

"clients", in relation to any person, means –

(a) persons who have entered into or may enter into

agreements for the provision of services by that person

when carrying on by way of business any regulated

activities, or

(b) persons who have received or may reasonably expect to

receive the benefit of services provided or arranged or

to be provided or arranged by that person when

carrying on by way of business any regulated activities,

"close relative" of a person means –

(a) his spouse,

(b) his children, stepchildren, parents, step-parents,

brothers, sisters, half-brothers, half-sisters, stepbrothers

and stepsisters, and

227

(c) the spouse of any person within paragraph (b),

"Commission" means the Guernsey Financial Services Commission

established by the Financial Services Commission (Bailiwick of Guernsey)

Law, 1987z,

"Policy Council" means the States of Guernsey Policy Council,

"company" means a body corporate, of whatever

description, incorporated with or without limited

liability in any part of the world, and includes a

Bailiwick company,

"contract of employment" means a contract of service or

apprenticeship, or a contract personally to execute any work or labour,

whether express or implied and whether written or oral,

"contravention" includes failure to comply, and cognate expressions

shall be construed accordingly,

"controller", in relation to a company, means –

(a) a managing director or chief executive of that company

or of any other company of which that company is a

subsidiary,

z Ordres en Conseil Vol. XXX, p. 243; No. XX of 1991; No. XIII of 1994; No. II of 1987; and No. I of 1998.

228

(b) a shareholder controller or an indirect controller,

"director" includes any person who occupies the

position of director by whatever name called and, in relation to an

unincorporated body, any member of the committee or other similar

governing body,

"deemed holder" of a supervised role means a person who, in respect

of a person or entity which is not a licensed fiduciary [but which is carrying on

regulated activities], holds a role which would be a supervised role if that

person or entity were a licensed fiduciary,

"documents" includes information recorded in any form (including,

without limitation, in an electronic communication) and, in relation to

information recorded otherwise than in legible form, references to its

production, howsoever expressed, include references to the production of a

copy of the information in legible form,

"employee" means an individual who has entered into

or who works under (or, where the employment has ceased, who worked

under) a contract of employment, and cognate expressions shall be construed

accordingly,

"equity share capital" means, in relation to a company, its issued share

capital excluding any part thereof which, as respects neither dividends nor

capital, carries any right to participate beyond a specified amount in a

distribution,

"established place of business", in relation to a company, and without

limitation, does not include an office in the Bailiwick at which is transacted

229

only such administrative business as is necessary to enable that company to

comply with the requirements of the Companies (Guernsey) Law, 1994, the

Companies (Alderney) Law, 1994 or any corresponding legislation in force in

any place outside the Bailiwick,

"fiduciary licence" means a full fiduciary licence or personal fiduciary

licence granted by the Commission under section 6,

"former licensed fiduciary" means a person who –

(a) does not hold and is not deemed to hold a fiduciary

licence, but

(b) has previously held such a licence,

"full fiduciary licence" has the meaning given by section 4,

item (A), (B) or (C) "group", in relation to a company, means that

company, any other company which is its holding company or subsidiary and

any other company which is a subsidiary of that holding company,

"Guernsey company" means a company the memorandum and articles


section 117(1) of the Companies (Guernsey) Law, 1994aa,

aa Order in Council No. XXXIII of 1994; No. XIV of 1996.

230

"Her Majesty's Procureur" includes Her Majesty's Comptroller,

"holding company" has the meaning given in Schedule 2, subject to any

regulations under paragraph 5 of that Schedule,

"indirect controller", in relation to a company, means a person in

accordance with whose directions or instructions any director of that company

or of any other company of which that company is a subsidiary, or any

controller of that company, is accustomed to act,

"inspector" means a person appointed by the Commission under

section 24(1),

"internet or telecommunications service provider" means a person

who provides a service that consists of –

(a) the transmission over a telecommunications system of

information (including, without limitation, anything

falling within paragraphs (a) to (d) of the definition of

the expression "telecommunications system") provided

by another person, or

(b) the provision of access to a telecommunications system,

"lawyer" means an advocate or –

(a) a member of the Bar of England and Wales, the Bar of

Northern Ireland or the Faculty of Advocates in

Scotland, or

231

(b) a Solicitor of the Supreme Court of England and Wales,

of the Supreme Court of Judicature of Northern Ireland

or in Scotland,

"licensed fiduciary" means a person who holds a fiduciary licence,

"limited partner" means a person described in paragraph (b)(ii) of the

definition of the expression "limited partnership",

"limited partnership" means –

(a) an arrangement which is registered as a limited

partnership, and in respect of which there is a valid

certificate of registration, under the Limited

Partnerships (Guernsey) Law, 1995bb, or

(b) an arrangement entered into under the laws of a place

outside the Bailiwick between two or more persons,

under which –

(i) one or more of them is, or are jointly and

severally, liable without limitation for all debts

and obligations to third parties incurred

pursuant to the arrangement, and

bb Order in Council No. XII of 1995; and No. V of 1996.

232

(ii) the others (referred to in this Law as "limited

partners") have, by whatever means,

contributed or agreed to contribute specified

amounts pursuant to the arrangement and are

not liable for those debts and obligations (unless

they participate in controlling the business or are

otherwise subjected to a greater liability by those

laws in specified circumstances) beyond the

amount contributed or agreed to be contributed,

"manager", in relation to a company, means a person

other than a chief executive who, under the immediate authority of a director

or chief executive of the company –

(a) exercises managerial functions, or

(b) is responsible for maintaining accounts or other records of the

company,"officer of police" means a member of the salaried police force of the

Island of Guernsey and –

(a) in relation to Guernsey, Herm and Jethou, and within

the limits of his jurisdiction, a member of the special

constabulary of the Island of Guernsey,

(b) in relation to Alderney, a member of any police

force which may be established by the States of

Alderney and, within the limits of his

jurisdiction, a special constable appointed or

deemed to be appointed pursuant to the

233

provisions of an Ordinance made under section

46A of the Government of Alderney Law,

1987cc,

(c) in relation to Sark, the Constable and the

Vingtenier, and

(d) includes an officer within the meaning of section 1(1) of the Customs and

Excise (General Provisions) (Bailiwick of Guernsey) Law, 1972,

"partnership" has the meaning given by section 1 of the Partnership

(Guernsey) Law, 1995dd, and cognate expressions shall be construed

accordingly,

"pension scheme" means a scheme which –

(a) is bona fide established as a trust,

(b) is established in connection with the carrying on of

business or the exercise of functions,

(c) has for its sole or main purpose the provision of

retirement or other benefits –

cc Ordres en Conseil Vol. XXX, p. 37; Vol. XXXI, pp. 83 and 306; No. XI of 1993; No. IX of 1995; No. IV of 1998; and No. I of 2000; section 15 has been prospectively repealed and replaced by the Government of Alderney (Amendment) Law, 2000. dd Order in Council No. VIII of 1995.

234

(i) for persons employed in connection with such

business or functions, on their retiring at an age

specified in the rules of the scheme or on their

becoming incapacitated at some earlier age,

(ii) for the widows, children or dependants of

persons who are or have been so employed, on

the death of those persons,

A

B

C,"personal fiduciary licence" has the meaning given by section 4,

"protector", in relation to a trust, means a person other than a trustee

who, as the holder of an office created by the terms of the trust, is authorised

or required to participate in the administration of the trust,

"qualifying capital interest" has the meaning given by section 23(7),

"regulated activity" has the meaning given in section 2 as that section

has effect from time to time,

" regulatory Laws" means –.

(a) the Protection of Investors (Bailiwick of Guernsey) Law,

235

1987ee,

(b) the Insurance Business (Guernsey) Law, 1986ff,

(c) the Banking Supervision (Bailiwick of Guernsey) Law,

1994gg, and

(ca) the Financial Services

Commission (Bailiwick of Guernsey) Law, 1987,

(cb) the Insurance Business (Bailiwick of Guernsey) Law,

2002,

(cc) the Insurance Managers and Insurance Intermediaries

(Bailiwick of Guernsey) Law, 2002,

(cd) the Registration of Non-Regulated Financial Services

Businesses (Bailiwick of Guernsey) Law, 2008,

(d) any other enactment or statutory instrument prescribed for the purposes of

this section by regulations of the Policy Council made the Commission and with the

agreement of–

the Policy and Finance Committee of the States of Alderney

ee Ordres en Conseil Vol. XXX, p. 281. ff Ordres en Conseil Vol. XXIX, p. 214; No. II of 1998. gg Order in Council No. XIII of 1994.

236

and the Policy and Performance Committee of the Chief

Pleas of Sark,

"related company" has the meaning given by section 23(6),

"relevant supervisory authority", in relation to a place outside the

Bailiwick, means an authority discharging in that place –

(a) functions corresponding to any functions of the

Commission under this Law, under the Financial

Services Commission (Bailiwick of Guernsey) Law,

1987hh or under the regulatory Laws, or

(b) such other functions as the Policy and Resources

Committee may, after consultation with the

Commission, and with the agreement of the Policy and

Finance Committee of the States of Alderney and the

Policy and Performance Committee of the Chief Pleas of

Sark, by regulation prescribe,

"Royal Court" means the Royal Court sitting as an Ordinary Court,

"Sark" means the Island of Sark and its dependencies,

"shareholder controller", in relation to a company, means a person

who, alone or with associates, is entitled to exercise, or control the exercise of,

hh Ordres en Conseil Vol. XXX, p. 243; No. XX of 1991; No. XIII of 1994; No. II of 1987; and No. I of 1998.

237

15 per cent or more of the voting power in general meeting of that company or

of any other company of which that company is a subsidiary,

"significant shareholder" has the meaning given in section 22(2),

"subsidiary company" has the meaning given in Schedule 2, subject to

any regulations under paragraph 5 of that Schedule; and "subsidiary" has the

same meaning,

"supervised company" is –

(a) a company –

(i) which holds a licence to carry on controlled

investment business under section 4 of the

Protection of Investors (Bailiwick of Guernsey)

Law, 1987ii or which is exempt from licensing

under section 29 of that Law,

(ii) which holds an authorisation under section 8 of

that Law, or

(iii) which is a closed-ended investment company

within the meaning of paragraph 2(2) of

Schedule 1 to that Law and for the issue of the

shares of which the Policy Council has granted its

ii Ordres en Conseil Vol. XXX, p. 281.

238

consent under the Control of Borrowing (Bailiwick of

Guernsey) Ordinance, 1959jj,

(b) a company which is registered as an insurer by the

Commission under the Insurance Business (Guernsey)

Law, 1986kk or which is exempt from such registration

by virtue of section 8 of that Law,

(c) a company which is a licensed institution within the

meaning of the Banking Supervision (Bailiwick of

Guernsey) Law, 1994ll, or

(d) a company which is of any other class or description prescribed

for the purposes of this section by regulations of the Policy Council made after

consultation with the Commission and with the agreement of the Policy and Finance

Committee of the States of Alderney and the Policy and Performance Committee of the

Chief Pleas of Sark,

"telecommunications system" means a system for the

conveyance, through the agency of electric, magnetic, electro-magnetic,

electro-chemical or electro-mechanical energy, of –

(a) speech, music and other sounds,

jj Recueil d'Ordonnances Tome XII, p. 105; Tome XV, p. 197; Tome XVI, p. 473; Tome XX, p. 412; No. XXVIII of 1989; and Order in Council No. XII of 1995. kk Ordres en Conseil Vol. XXIX, p. 214. ll Order in Council No. XIII of 1994.

239

(b) visual images,

(c) signals serving for the impartation (whether as between

persons and persons, things and things or persons and

things) of any matter otherwise than in the form of

sounds or visual images, or

(d) signals serving for the actuation or control of machinery

or apparatus,

"trust" means the legal relationship that exists (by whatever name)

where a person (the "trustee") holds or has vested in him or is deemed to hold

or have vested in him any property which does not form, or which has ceased

to form, part of his own estate –

(a) for the benefit of another person, whether or not yet

ascertained or in existence, or

(b) for any purpose which is not for the benefit only of the

trustee,

and the expression "trust" shall include a trust and any

equivalent or similar structure or arrangement, whether established in or

under the laws of the Bailiwick or elsewhere and howsoever named

(2) Unless the context otherwise requires, references in this Law to

the Policy and Finance Committee of the States of Alderney and the Policy and

Performance Committee of the Chief Pleas of Sark are references to the committees of

240

those islands for the time being performing the functions respectively conferred by

this Law on the said Policy and Finance Committee or (as the case may be) the said

Policy and Performance Committee.

(3) For the purposes of this Law a person who carries on any

activity shall be deemed to do so by way of business if he receives any income, fee,

emolument or other consideration in money or money's worth for doing so.

(4) Unless the context otherwise requires, references in this Law to

an enactment are references thereto as amended, re-enacted (with or without

modification), extended or applied.

(5) In this Law any words importing the

neuter gender shall include the masculine and the

feminine, and any words importing the masculine

gender shall include the feminine and the neuter.

(6) The Interpretation (Guernsey) Law, 1948mm applies to the

interpretation of this Law throughout the Bailiwick.

Transitional provisions.

59. (1) Where, immediately before the commencement of this Law –

(a) a person other than a Bailiwick body was

carrying on by way of business, in or

from within the Bailiwick, any regulated

mm Ordres en Conseil Vol. XIII, p. 355.

241

activity, or

(b) a Bailiwick body was carrying on by way of business, in

or from within any place whatsoever, any regulated

activity,

then that person or body –

(i) at any time prior to the prescribed date, shall be

deemed to be a licensed fiduciary, and

(ii) on or at any time after the prescribed date, shall

be deemed to be a licensed fiduciary, provided

that the conditions set out in subsection (2) are

satisfied in relation to that person or body,

and the provisions of this Law shall apply in relation to

that person or body accordingly.,

(2) The conditions referred to in subsection (1)(ii) are –

(a) that, prior to the prescribed date, the

Codes of practice and guidance.

37. (1) The Commission, after consultation with –

(a) the Committee, the Policy and Finance Committee of the

States of Alderney and the Policy and Performance

Committee of the Chief Pleas of Sark, and

242

(b) such other persons as appear to the Commission to be

appropriate,

may (without prejudice to any other power conferred by the provisions of this Law or

the regulatory Laws as to the making of codes or guidance) issue such codes of practice

and/or such guidance as the Commission thinks necessary –

(i) for the purpose of providing clarification or

guidance as to the duties, requirements and

standards to be complied with (including,

without limitation, duties, requirements and

standards as to client protection) and the

procedures (whether as to identification, record-

keeping, internal reporting, internal controls,

corporate governance, training or otherwise)

and best practices to be observed by –

(A) persons carrying on by way of business

any regulated activity, or

(B) any other persons to whom the code or

guidance applies,

(ii) generally for the purpose of providing

clarification or guidance in respect of the

provisions of or for the purposes of, or in

connection with the administration,

implementation or enforcement of, this Law,

243

and without limitation a code of practice or guidance under this section may make

provision in respect of any matter in respect of which rules may be made under section

30, 34 or 35.

(2) The Commission may, after consultation as mentioned in

subsection (1), amend the whole or any part of a code of practice or guidance issued

under this section and issue that amended code or guidance.

(3) Without prejudice to any other provision of this Law or any

other enactment as to the consequences of any such contravention, a contravention by

any person of a provision of a code of practice or guidance issued under this section

does not of itself render him liable to any criminal proceedings; but –

(a) the Commission, in the performance of its functions,

may take the provision of the code or guidance and the

contravention thereof into account in determining

whether and in what manner to perform those

functions, and


whether or not under the provisions of or for the

purposes of this Law, the provision of the code or

guidance is admissible in evidence, and if the provision

appears to the court or other tribunal before which the

proceedings are being conducted to be relevant to any

question arising in the proceedings then the provision

may be taken into account in determining that question.

244

PART IV

DISCLOSURE OF INFORMATION

Restrictions on disclosure of information.

person or body concerned has submitted an application for a fiduciary licence in

accordance with the provisions of section 5, and

(b) that, at the time in question, the application has not been

finally determined,

and for the purposes of this subsection an application is finally

determined when it is granted (whether or not subject

to conditions) or, if it refused –

38. (1) Subject to the provisions of section 39 –

(a) no person who under the provisions of or for the

purposes of this Law receives information relating to the

business, property or affairs of any person,

(b) no person who obtains any such information directly or

indirectly from a person who has so received it,

shall disclose the information without the consent of the person to whom it relates and

(if different) the person from whom it was so obtained.

(2) A person who discloses information in contravention of this

section is guilty of an offence.

245

Cases where disclosure is permitted.

39. Section 38 does not preclude –

(a) the disclosure of –

(i) information which at the time of disclosure is or

has already been made available to the public

from other sources, or

(ii) information in the form of a summary or

collection of information so framed as not to

enable information relating to any particular

person to be ascertained from it,

(b) the disclosure of information for the purpose of

enabling or assisting –

(i) the Commission, or

(ii) any body established by Ordinance under

[section 46] of the Banking Supervision Law or

[section 84] of the Insurance Business Law for

the purposes of a scheme for the protection of

customers,

to perform its functions,

(i) at the end of the period within which, under

section 19, an appeal against the refusal can be

246

brought, or

(ii) if an appeal is brought within that period, when

the appeal is determined or withdrawn.

(3) In this section the "prescribed

date" means the date specified by Ordinance of

the States for the purposes of this section.

,

(c) without prejudice to the generality of paragraph (b), the

disclosure of information by the Commission to the

auditor of a licensed fiduciary or former licensed

fiduciary if it appears to the Commission that the

disclosure would enable or assist the Commission to

perform its functions or would otherwise be in the



(d) where, in order to enable or assist it to perform its

functions, the Commission considers it necessary to

seek advice from a qualified person on any matter of

law, accountancy or valuation (actuarial or otherwise)

or any other matter requiring the exercise of

professional skill, the disclosure by the Commission to

that person of such information as appears to the

Commission to be necessary to ensure that he is

properly informed as to the matters on which his advice

247

is sought,

(e) the disclosure by the Commission of information in the



(f) the disclosure of information for the purpose of

enabling or assisting a relevant supervisory authority to

perform its functions,

(g) the disclosure of information in compliance with, or for

the purposes of enabling or assisting a person to comply

with, any requirement imposed by or under the

provisions of this Law or any other enactment,

(h) the disclosure of information –

(i) for the purposes of the investigation, prevention

or detection of crime, or

(ii) with a view to the instigation of or otherwise for

the purposes of any criminal proceedings,

whether under the provisions of this Law or otherwise,

(i) the disclosure of information in connection with any

other proceedings, enforcement action or sanction (civil,

criminal or administrative) arising out of or under the


248

(j) the disclosure of information with a view to the

instigation of, or otherwise for the purposes of, any

disciplinary proceedings relating to the exercise of his

professional duties by –

(i) an auditor of a licensed fiduciary or former

licensed fiduciary, or

(ii) a person appointed to make a report under

section 5(6)(a) of this Law, section 7(1)(b) or 8 of

the Enforcement Powers Law, [section 3(3)(a)] of

the Protection of Investors Law, [section 5(5)] of

the Banking Supervision Law, [section 6(5)(a) or

36] of the Insurance Business Law or [section

3(5)(a)] of the Insurance Managers and

Intermediaries Law, or

(iii) a person appointed as a skilled person pursuant

to the provisions of section 27 of this Law or the

corresponding provisions of the regulatory

Laws,

(k) the disclosure by the Commission to Her Majesty's

Procureur or an officer of police of -

(i) information obtained under the provisions of

section 26 or 27 of this Law or sections 7 to 13 of

the Enforcement Powers Law, or

249

(ii) information in the possession of the Commission

as to any suspected offence in relation to which

the powers conferred by those sections are

exercisable,

(l) where information is disclosed to an officer of police

under paragraph (k), the disclosure of that information

by an officer of police for the purposes of an

investigation or prosecution either in the Bailiwick or,

with the prior consent of Her Majesty's Procureur to

such disclosure, elsewhere,

(m) the disclosure of information to a person or entity

responsible for a scheme for compensating clients or

investors (whether in the Bailiwick or elsewhere) –

(i) if it appears to the Commission that the

disclosure would enable or assist the recipient of

the information or the Commission to perform

its functions, and

(ii) if the recipient has given to the Commission a

written undertaking that the information will

not be further disclosed without the prior

consent of the Commission,

Amendments.

60. (1)

(2) After

250

(n) the disclosure of information by the Commission for the

purposes or in the circumstances described in -

(i) section 127(121(2) of the Financial Services

Commission Law,

(ii) [section 34B] of the Protection of Investors Law,

(iii) [section 44] of the Banking Supervision Law,

(iv) [section 80] of the Insurance Business Law,

(v) [section 57] of the Insurance Managers and

Intermediaries Law, or

(vi) section 20 of the Enforcement Powers Law, or

(o) the disclosure of information for the purpose of

enabling or assisting -

(i) the Registrar of Companies (,

(ii) the Alderney Registrar, or

(iii) the Legal Aid Administrator (the office of which

was established under section 2 of the Legal Aid

(Bailiwick of Guernsey) Law, 2003),

251

to perform their respective functions.

Information supplied to Commission by relevant supervisory authority.

40. (1) This section applies, to the exclusion of section 38, to

information relating to the business, property or affairs of any person provided to the

Commission for the purposes of its functions, whether under the provisions of this

Law or otherwise, by a relevant supervisory authority.

(2) Information described in) Law, 1994ll insert the following

subsection –(1) -

(a) may only be used by the Commission for the purpose

for which it was provided by the relevant supervisory

authority,

(b) may only be disclosed by the Commission with the

consent of, and for purposes or in circumstances

approved by, that authority, and

(c) may not be disclosed by the Commission to the person

to whom it relates except with the express approval of

that authority.

(3) In requesting the consent of a relevant supervisory authority for

the purposes of subsection (2)(b), the Commission must provide that authority with -

ll Order in Council No. XXXIV of 1994.

252

(a) the name of any person to whom it proposes to disclose

the information, and

(b) an accurate description of that person's functions.

(4) Where under this section the Commission discloses information

described in subsection (1), it may do so only in accordance with any conditions

(whether as to the use and disclosure of the information or otherwise) subject to which

the consent of the relevant supervisory authority was given.

(5) For the avoidance of doubt, and without limitation, nothing in

this section prevents the disclosure of information by the Commission -

(a) for the purposes or in the circumstances described in

section 39(h), or

(b) in accordance with the provisions of any of the

appointed Laws in circumstances where they provide

that the disclosure does not contravene any obligation

as to confidentiality or other restriction on the disclosure

of information imposed by statute, contract or

otherwise.

(6) No person who -

(a) receives information described in subsection (1) from

the Commission, or

(b) obtains any such information directly or indirectly from

253

a person who has so received it,

shall disclose the information except with, and in accordance with the conditions of,

the consent of the Commission.

(7) A person who discloses information in contravention of

subsection (6) is guilty of an offence.

Royal Court to take Commission's undertakings into account.

41. The Royal Court or any division thereof must, before directing the

Commission (whether pursuant to the provisions of this Law or otherwise) to disclose

to any person any information relating to the business, property or affairs of any

person held, received or obtained by it under the provisions of or for the purposes of

this Law or the regulatory Laws (whether pursuant to those provisions or otherwise)

-

(a) take into account -

(i) any obligation as to confidentiality or other

restriction on the disclosure of information

imposed by statute, contract or otherwise to

which the Commission is subject in respect of the

information,

(ii) any undertaking entered into by the

Commission in relation to the use, disclosure,

safekeeping and return of the information, and

(iii) any conditions (whether as to the use and

254

disclosure of the information or otherwise)

subject to which the information is held or was

received or obtained, and

(b) where the information has been supplied to the

Commission by a relevant supervisory authority -

(i) give the Commission a reasonable opportunity

to consult that authority with a view to obtaining

its consent to the disclosure, and

(ii) where such consent is not forthcoming, or is

given subject to conditions, take into account the

authority's decision and the reasons for it.

PART V

OFFENCES AND PENALTIES

Penalties.

42. (1) A person guilty of an offence under section 16(5), 17(2), 24(3),

30(4) or 31(7) or (8) is liable –

(a) on summary conviction, to a fine not exceeding twice

level 5 on the uniform scale,

(b) on conviction on indictment, to a fine.

(2) A person guilty of an offence under any other provision of this

Law is liable –

255

(a) on summary conviction, to imprisonment for a term not

exceeding 6 months, or to a fine not exceeding twice

level 5 on the uniform scale, or to both,

(b) on conviction on indictment, to imprisonment for a term

not exceeding 2 years, or to a fine, or to both.

(3) In relation to offences tried before the Court of Alderney or the

Court of the Seneschal, and for the avoidance of doubt, the penalties stipulated by

subsections (1)(a) and (2)(a) are applicable notwithstanding the restrictions on the

sentencing powers of those courts imposed by section 13 of the Government of

Alderney Law, 2004nn and section 11 of the Reform (Sark) Law, 2008oo.

(4) Where an offence under the provisions of this Law involves a

public display or exhibition of any name or description, there shall be deemed to be a

fresh offence on each day on which the display or exhibition continues.

Criminal liability of directors, etc.

43. (1) Where an offence under the provisions of this Law is committed

by a company or other legal person and is proved to have been committed with the

consent or connivance of, or to be attributable to any neglect on the part of -

(a) in the case of a company, any director, controller,

nn Order in Council No. III of 2005; amended by No. XXII of 2010; and No. XI of 2012. oo Order in Council No. V of 2008; amended by No. VI of 2008; No. XXVII of 2008; No. XIV of 2010; and No. XII of 2011.

256

secretary or other similar officer thereof,

(b) in the case of a limited partnership with legal

personality, any general partner,

(c) in the case of a limited liability partnership, any

member,

(d) in the case of a foundation, any foundation official, or

(e) any person purporting to act in any capacity described

in paragraph (a), (b), (c) or (d),

he as well as the company or other legal person (as the case may be) is guilty of the

offence and may be proceeded against and punished accordingly.

(2) Where the affairs of a company or other legal person are

managed by its members, subsection (1) applies to a member in connection with his

functions of management as if he were a director.

Criminal proceedings against unincorporated bodies.

44. (1) Where an offence under the provisions of this Law is committed

by an unincorporated body and is proved to have been committed with the consent

or connivance of, or to be attributable to any neglect on the part of -

(a) in the case of -

(i) a partnership, any partner thereof, but subject to

the provisions of subparagraph (ii),

257

(ii) a limited partnership without legal personality,

any general partner thereof,

(b) in the case of any other unincorporated body, any

director of that body or other officer thereof who is

bound to fulfil any duty of which the offence is a breach

or, if there is no such officer, any member of the

committee or other similar governing body, or any

controller of that body, or

(c) any person purporting to act in any capacity described

in paragraph (a) or (b),

he as well as the unincorporated body is guilty of the offence and may be proceeded

against and punished accordingly.

(2) Where an offence under the provisions of this Law is alleged to

have been committed by an unincorporated body, proceedings for the offence shall,

without prejudice to subsection (1), be brought in the name of that body and not in the

name of any of its members.

(3) A fine imposed on an unincorporated body on its conviction of

an offence under the provisions of this Law shall be paid from the funds of that body.

Defence of due diligence.

45. In any proceedings for an offence under the provisions of this Law it is

a defence for the accused to prove that he took all reasonable precautions and

exercised all due diligence to avoid the commission of such an offence by himself and

258

by any person under his control.

Jurisdiction.

"(1A) 46. Without prejudice to any jurisdiction exercisable apart

from this section, proceedings for an offence under the provisions this Law may be

taken, and the offence may for all incidental purposes be treated as having been

committed, in any place in the Bailiwick.

PART VI

GENERAL PROVISIONS

Miscellaneous

Commission to have regard to guidance, etc, under FSC Law and other matters.

47. (1) In performing its functions under the provisions of this Law -

(a) the Commission must (so far as relevant) -

(i) take into account any written guidance of a

general character given by the Committee under

section 7(1)(a) of the Financial Services

Commission Law, and

(ii) act in accordance with any written directions of

a general character given by the Committee

under section 7(1)(b) of that Law,

concerning the policies to be followed by the

Commission in relation to the supervision of finance

259

business in the Bailiwick and the manner in which any

function of the Commission is to be performed,

(b) the Commission may take into account (so far as

relevant) -

(i) any guidance notes or international standards

relating to regulated activities and regulation

issued by a body recognised by the Commission

and identified in a code issued under the

provisions of this Law,

(ii) the provisions of any rules, code, guidance,

principles, policies or instructions issued under

the provisions of this Law or the Financial

Services Commission Law,

(iii) any matter to which it may have regard under

the provisions of this Law when performing the

function in question, and

(iv) for the avoidance of doubt, any investigation,

prosecution, proceedings, enforcement action,

duty, obligation, liability, penalty, sanction

(civil, criminal or administrative), injunction,

order or other remedy undertaken, imposed or

obtained under the provisions of or for the

purposes of this Law or the regulatory Laws in

260

respect of any licensed fiduciary, holder of a

supervised role or other person or entity, and

(c) the Commission must have regard to the objectives of -

(i) protecting the public and the reputation of the

Bailiwick as a finance centre,

(ii) ensuring that any relevant markets are fair,

efficient and transparent, and

(iii) reducing risks to the financial system in the

Bailiwick.


derogation from any other provision of this Law or any other enactment or rule of law

relating to the functions of the Commission or the performance thereof and the matters

which it must or may take into account.

Service of notices and documents.

48. (1) Any document other than a summons to be given or served

under the provisions of or for the purposes of this Law may be given to or served upon

–

(a) an individual, by being delivered to him, or by being left

at, or sent by post to, his usual or last known place of

abode, or by being transmitted to his relevant electronic

address,

261

(b) a company or other legal person with a registered office

in the Bailiwick, by being left at, or sent by post to, that

office, or by being transmitted to its relevant electronic

address,

(c) a company or other legal person without a registered

office in the Bailiwick, by being left at, or sent by post to

-

(i) its principal or last known principal place of

business in the Bailiwick, or

(ii) if there is no such place, its registered office or


business elsewhere,

or by being transmitted to its relevant electronic

address,

(d) an unincorporated body -

(i) by being given to or served on any partner (not

being a limited partner in a limited partnership),

member of the committee or other similar

governing body, director or other similar officer

thereof in accordance with paragraph (a), or

(ii) by being left at, or sent by post to -

262

(A) the body's principal or last known

principal place of business in the

Bailiwick, or

(B) if there is no such place, its principal or

last known principal place of business

elsewhere,

or by being transmitted to its relevant electronic

address,

(e) the Committee or any other committee of the States of

Guernsey, by being left at, or sent by post to, its

principal office in the Bailiwick, or by being transmitted

to its electronic address,

(f) subject to the provisions of section 49, the Commission

or its Chairman, by being left at, or sent by post to, the

principal office of the Commission in the Bailiwick,

and in this section –

(i) "by post" means by special delivery, recorded or

signed for delivery or ordinary letter post,

(ii) "electronic address" includes, without

limitation, an e-mail address and

telecommunications address,

263

(iii) "relevant electronic address" means an

electronic address -

(A) with which, in the opinion of the

Commission, the person concerned has a

personal, business or other connection,

and

(B) a document transmitted to which is

likely to come to his attention,

(iv) "transmitted" means transmitted by electronic

communication (that is to say, in electronic form

and by electronic means), facsimile transmission

or other similar means which produce or enable

the production of a document containing the text

of the communication, and

(v) "summons" includes any document compelling

a person's attendance before the court.

(2) If under the provisions of or for the purposes of this Law a

person notifies the Commission of -

(a) an address for service within the Bailiwick, or

(b) an electronic address at which the service of documents

may be effected on him,

264

any document other than a summons to be given to or served upon him under those

provisions or for those purposes may be given or served by being left at, or sent by

post to, that address in the Bailiwick or (as the case may be) by being transmitted to

that electronic address.

(3) If service of a document under the provisions of or for the

purposes of this Law cannot, after reasonable enquiry, be effected in accordance with

this section, the document may be served by being published on two occasions in La

Gazette Officielle.

(4) Subsections (1), (2) and (3) are without prejudice to any other

lawful method of service.

(5) Notwithstanding the provisions of this section and of any other

rule of law in relation to the service of documents, no document to be given to or

served on the Committee or any other committee of the States of Guernsey or the

Commission or its Chairman under the provisions of or for the purposes of this Law

shall be deemed to have been given or served until it is received.

(6) If a person upon whom a document is to be served under the

provisions of or for the purposes of this Law is a minor or person under guardianship,

the notice or document shall be served on his guardian; and if there is no guardian,

the Commission (or, with leave of the court, any other person) may apply to the

appropriate Court for the appointment of a person to act as guardian under those

provisions or for those purposes; and in this subsection the “appropriate Court"

means –

(a) the Court of Alderney, where the person in respect of

whom the guardian is to be appointed is within the

265

jurisdiction of that Court,

(b) the Court of the Seneschal, where the person in respect

of whom the guardian is to be appointed is within the

jurisdiction of that Court,


(7) A document sent by post shall, unless the contrary is shown, be

deemed for the purposes of this Law to have been received –

(a) in the case of a document sent to an address in the

United Kingdom, the Channel Islands or the Isle of Man,

on the third day after the day of posting,

(b) in the case of a document sent elsewhere, on the seventh

day after the day of posting,

excluding in each case any day which is not a business day.

(8) Service of any document sent by post shall be proved by

showing the date of posting, the address thereon and the fact of prepayment.

(1), an (9) A document shall be deemed for the purposes of this Law to

have been -

(a) addressed to the person concerned, and

(b) delivered to any person, or left at or transmitted to a

266

place or address,

if the person effecting service certifies that it was addressed, and delivered, left or

transmitted (as the case may be), in accordance with the provisions of this section, and

the document shall, unless the contrary is shown, be deemed for those purposes to

have been received when it was delivered, left or transmitted (as the case may be).

Documents to be submitted in electronic form and by electronic means.

49. (1) Where a document is required or permitted to be submitted to

the Commission by or under the provisions of or for the purposes of this Law, and

except to the extent that express provision to the contrary is made by or under the

provisions of this Law, the document -

(a) shall be in such electronic form, and shall be submitted

by such electronic means and to such electronic address,

as the Commission may require, whether in any

particular case or class of cases or generally, or

(b) shall be in such non-electronic form, and shall be

submitted by such non-electronic means, as the

Commission may in its absolute discretion require in

any particular case or class of case.

(2) Where a document is required by or under the provisions of or

for the purposes of this Law to be in such form as the Commission may require, the

Commission may, in its absolute discretion and without limitation, require the

document to be in such electronic form or non-electronic form as the Commission may

require, whether in any particular case or class of cases or generally.

267

(3) This section applies, without limitation, to any, and to anything

accompanying any, application, notice, return, validation, accounts, report, statement,

consent, declaration, questionnaire, computation, plan or signature.

(4) This section is in addition to and not in derogation from the

provisions of the Electronic Transactions (Guernsey) Law, 2000pp, the Electronic

Transactions (Alderney) Law, 2001qq and the Electronic Transactions (Sark) Law,

2001rr.

Verification of information.

50. (1) The Commission may require that any information, statement

or other document provided to it in compliance or purported compliance with any

requirement imposed by or under the provisions of this Law shall be verified in such

manner as the Commission may reasonably specify.

(2) Any information, statement or other document which is not

verified in accordance with a requirement made under this section shall be deemed

for the purposes of this Law not to have been provided in accordance with the said

requirement and the said requirement shall accordingly be deemed not to have been

complied with.

Evidence.

51. (1) In any proceedings, a certificate signed on behalf of the

pp Order in Council No. VIII of 2000. qq Order in Council No. XXVI of 2001. rr Order in Council No. X of 2001.

268

Commission certifying –

(a) that a particular person is or is not a licensed fiduciary

or former licensed fiduciary or was or was not a licensed

fiduciary or former licensed fiduciary at a particular

time,

(b) the date on which a particular person obtained or ceased

to hold a fiduciary licence,

(c) the terms of any conditions imposed in respect of a

particular fiduciary licence,

is admissible in evidence.

(2) A certificate purporting to be signed as mentioned in subsection

(1) shall be deemed to have been duly signed unless the contrary is shown.

for the compulsory winding up of a company Liability of States, Commission, etc

Exclusion of liability.

52. (1) No liability shall be incurred -

(a) by, or by any committee of, the States of Guernsey, the

States of Alderney or the Chief Pleas of Sark,

(b) by the Commission,

(c) by Her Majesty's Sheriff, the Registrar of Companies,

269

the Alderney Greffier or the Prévôt of Sark,

(d) by any member, officer or servant of any of the

aforesaid, or

(e) by any other person or entity specified in the Ordinance,

in respect of anything done or omitted to be done after the commencement of this Law

in the discharge or purported discharge of any function conferred by or under the

provisions of this Law unless the thing was done or omitted to be done in bad faith.

(2) Subsection (1) does not prevent an award of damages in respect

of the act or omission on the ground specified in section 125(k) may be made to the

Court by the Commission.".that it was unlawful as a result of section 6(1) of the

Human Rights (Bailiwick of Guernsey) Law, 2000ss.

General (3) The States may by Ordinance amend this section.

Ordinances, regulations and rules, etc

Ordinances, regulations, rules, codes and guidance, etc - general.

53. (1) The States may by Ordinance make such provision as they think

fit –

(a) for the purpose of carrying the provisions as of this Law

into effect, and

ss Ordres en Conseil Vol. XL p. 396; as amended by Order in Council No. I of 2005; and G.S.I. No. 27 of 2006.

270

(b) in respect of anything in relation to subordinate

legislationwhich provision may be made under this

Law by Ordinance of the States.

(2 61. (1) Any Ordinance, regulation, rule,

code, guidance, principles, policies or ruleinstructions under the provisions of this

Law –

(a) may be amended or repealed by a subsequent

Ordinance, regulation or rule, , rule or code, or by

subsequent guidance, principles, policies or instructions

as the case may be, hereunder,

(b) may contain such consequential, incidental,

supplementary and, savings, transitional and other

ancillary provision as may appear to be necessary or

expedient, including provision amending any provision

of this Law.(without limitation), in the case of an

Ordinance or regulation -

(i) provision as to the creation and

punishment of offences in respect of

contraventions of the Ordinance or regulation

and as to the creation of new duties, obligations,

liabilities, remedies, penalties, sanctions and

other consequences (but subject to the

provisions of subsection (3)),

271

(ii) provision amending, or applying exceptions,

adaptations and modifications to, any of the


(iii) provision repealing, replacing, amending,

extending, adapting, modifying or disapplying

any rule of customary or common law.

(3) The power conferred by subsection (2)(b)(i) and by any other

provision of this Law to make provision as to the creation and punishment of offences

does not include power –

(a) to provide for offences to be triable only on indictment,

(b) to authorise the imposition, on summary conviction of

an offence, of a term of imprisonment or a fine

exceeding the limits of jurisdiction for the time being

imposed on the Magistrate's Court by section 9 of the

Magistrate's Court (Guernsey) Law, 2008, or

(c) to authorise the imposition, on conviction on indictment

of any offence, of a term of imprisonment exceeding two

years.

(4) The States may by Ordinance empower -

(a) the Commission or the Committee (or such other

committee of the States of Guernsey, States of Alderney

or Chief Pleas of Sark as may be specified by the

272

Ordinance) to make regulations, and

(b) the Commission, any committee of the States of

Guernsey, States of Alderney or Chief Pleas of Sark, and

any other body (including, without limitation, any court

in Guernsey, Alderney or Sark) or office holder, to make

or issue rules, orders, rules of court, codes, guidance,

principles, policies and instructions,

in respect of anything in relation to which provision may be made under the

provisions of this Law by Ordinance of the States, except (subject to the provisions of

subsection (2)(b)) provision amending this Law.

(5) Any power conferred by the provisions of this Law to make any

Ordinance, regulation, rule, code, guidance, principles, policies or ruleinstructions

may be exercised –

(a) in relation to all cases to which the power extends, or in

relation to all those cases subject to specified exceptions,

or in relation to any specified cases or classes of cases,

(b) so as to make, as respects the cases in relation to which

it is exercised –

(i) the full provision to which the power extends, or

any lesser provision (whether by way of

exception or otherwise),

(ii) the same provision for all cases, or different

273

provision for different cases or classes of cases,

or different provision for the same case or class

of case for different purposes,

(iii) any such provision either unconditionally or

subject to any prescribed conditions.

(6) The Committee (and any other committee of the States of

Guernsey) shall, before recommending the States to agree to make an Ordinance

under the provisions of this Law (other than an Ordinance under section 63), consult

-

(a) in the case of an Ordinance having effect in Alderney,

the Policy and Finance Committee of the States of

Alderney, and

(b) in the case of an Ordinance having effect in Sark, the


Sark,

in relation to the terms of the proposed Ordinance; but a failure to comply with this

subsection does not invalidate any Ordinance made under the provisions of this Law.

(7) An Ordinance made under the provisions of this Law (other

than an Ordinance under section 63) ceases to have effect –

(a) in Alderney if, within the period of four months

immediately following the approval date, the States of

274

Alderney resolve to disapprove its application to

Alderney, and

(b) in Sark if, at the first or second meeting of the Chief Pleas

of Sark following the approval date, the Chief Pleas

resolve to disapprove its application to Sark.

(8) If the States of Alderney or the Chief Pleas of Sark resolve to

disapprove the application of an Ordinance in accordance with the provisions of

subsection (7), the Ordinance ceases to have effect in Alderney or (as the case may be)

Sark, but without prejudice to –

(a) anything done under the Ordinance in Alderney or (as

the case may be) in Sark, or

(b) the making of a new Ordinance having effect in

Alderney or (as the case may be) in Sark.

(9) In this section, the "approval date", in relation to an Ordinance,

means the date of its approval by the States of Deliberation.

(10) Rules, codes, guidance, principles, policies and instructions

under the provisions of this Law shall be made by an instrument in writing.

Regulations : consultation with Committees and Commission and laying before the

States.

54. Regulations made under the provisions of this Law -

(a) where made by the Commission, shall be made after

275

consultation with the Committee, the Policy and

Finance Committee of the States of Alderney and the


Sark,

(b) where made by the Committee or any other committee

of the States of Guernsey, shall be made after

consultation with the Commission and with the

agreement of the Policy and Finance Committee of the

States of Alderney and the Policy and Performance

Committee of the Chief Pleas of Sark,

(c) whether made by the Commission or by the Committee

or any other committee of the States of Guernsey, shall

be laid before a meeting of the States as soon as possible

after being made; and if at that or the next meeting the

States resolve that the regulations be annulled, the

regulations shall cease to have effect but without

prejudice to anything done under them or to the making

of new regulations.

Publication of regulations, rules, codes and guidance, etc.

55. (1) The Commission shall publish, in such manner as it considers

best calculated to bring them to the attention of persons likely to be affected by them

and the public in general, on such terms and conditions as it considers appropriate

and subject to such charges (if any) as it may decide to levy to cover the costs of

publication -

(a) any regulations, rules, codes, guidance, principles and

276

instructions made or issued by the Commission in the

performance of its functions under the provisions of this

Law, and

(b) any policies issued by the Commission in respect of the

granting, variation, suspension and revocation by it, in

pursuance of its functions under the provisions of this

Law, of any fiduciary licences, consents, registrations,

permissions and authorisations or otherwise in respect

of the performance of its functions.

(2) Without prejudice to the provisions of subsection (1), the

Commission may charge such fee -

(a) as may be prescribed by regulations under section 7, or

(b) if no such fee is so prescribed, as it reasonably thinks fit,

for providing a person with a copy of any regulations, rules, codes, guidance,

principles, instructions and policies described in paragraph (a) or (b) of that

subsection.

Making and effect of contravention of rules.

56. (1) Before making any rules under the provisions of this Law the

Commission shall, unless it considers that the delay involved would be prejudicial to

the interests of the public or the reputation of the Bailiwick as a finance centre, publish

proposals for the rules -

(a) in such manner as the Commission considers best

277

calculated to bring them to the attention of persons

likely to be affected by them and the public in general,

and

(b) for such period as the Commission may determine,

and shall consider any representations made to the Commission concerning those

proposals.

(2) Rules of the Commission under the provisions of this Law shall

specify the provisions under which they are made.

(3) Without prejudice to any other provision of this Law or any

other enactment as to the consequences of any such contravention, a contravention by

any person of any rule of the Commission under the provisions of this Law does not

of itself render him liable to any criminal proceedings, but –

(a) the Commission, in the performance of its functions,

may take the rule and the contravention thereof into

account in determining whether and in what manner to

perform those functions, and


whether or not under the provisions of or for the

purposes of this Law, the rule is admissible in evidence,

and if the rule appears to the court or other tribunal

before which the proceedings are being conducted to be

relevant to any question arising in the proceedings then

the rule may be taken into account in determining that

278

question.

Regulations and rules are statutory instruments.

57. For the avoidance of doubt, regulations and rules under the provisions

of this Law are statutory instruments within the meaning of the Guernsey Statutory

Instruments (Registration) Ordinance, 1949tt, the provisions of which shall apply

accordingly.

Power to adapt rules, codes and guidance, etc, under this Law.

58. (1) Subject to the provisions of subsection (2), the Commission

may, of its own motion or on the application of a licensed fiduciary or an applicant for

a fiduciary licence, by notice in writing served on him adapt the requirements of any

rules, code, guidance, principles, policies or instructions issued under the provisions

of this Law to his circumstances or to the circumstances of any particular regulated

activity carried on by him.

(2) The Commission shall not exercise the powers conferred by

subsection (1) in any case unless it appears to the Commission that –

(a) compliance with the requirements in question would be

unduly burdensome for the applicant having regard to

the benefit which compliance would confer on clients,

and

(b) the exercise of those powers will not result in any undue

risk to clients.

tt Recueil d'Ordonnances Tome X, p. 16.

279

(3) The powers conferred by subsection (1) may be exercised

unconditionally or subject to conditions.

(4) In this section "adaptations" includes exceptions and

modifications (and related expressions shall be construed accordingly).

Interpretation, repeals, commencement, etc

Interpretation.

59. (1) In this Law, unless the contrary intention appears, the words

and expressions listed below have the following meanings and shall be construed as

follows (and related expressions shall be construed accordingly) –

"accountant" means a person who is qualified for appointment as an

auditor pursuant to section 260 (as read in conjunction with any Ordinance

under section 533) of the Companies (Guernsey) Law, 2008uu,

"actuary" means -

(a) a fellow of the Institute and Faculty of Actuaries in the

United Kingdom (or a member or other person subject

to the rules of such other body as the Committee may

approve by regulation),

(b) any other person approved for the time being by the

uu Order in Council No. VIII of 2008.

280

Commission and authorised by the Commission to act

as an actuary for -

(i) a person holding a licence under the provisions

of the regulatory Laws, or

(ii) an authorised or registered collective investment

scheme within the meaning of the Protection of

Investors Law, or

(c) any other person who performs or has performed the

functions of an actuary of a person or entity which holds

or is deemed to hold, or in respect of which there is held

or deemed to be held, a licence, consent, registration,

permission or authorisation from the Commission

under the provisions of the regulatory Laws (including,

for the avoidance of doubt, and without limitation, an

authorised or registered collective investment scheme),

"administration manager" means a person appointed by the Royal

Court under the provisions of section 81(2) of the Enforcement Powers Law,

"advertisement" includes every form of advertising and any means of

bringing an invitation or information to the notice of any person including,

without limitation, by publication, broadcast, electronic means, circulars,

notices, window displays, posters, brochures and leaflets, and references to the

"issue" of an advertisement shall be construed accordingly,

"advocate" means an Advocate of the Royal Court of Guernsey,

281

"Alderney company" means a company the memorandum and articles


section 163(1) of the Companies (Alderney) Law, 1994vv,

"Alderney Greffier" means the person appointed to the office of

Greffier under section 20 of the Government of Alderney Law, 2004ww,

"Alderney Registrar" means the Alderney Greffier, performing the

functions of Registrar under the Companies (Alderney) Law, 1994,

“ancillary vehicle” : see [section 20A(3)] of the Protection of Investors

Law,

"appointed Laws" means -

(a) the Criminal Justice (Fraud Investigation) (Bailiwick of

Guernsey) Law, 1991,

(b) the Criminal Justice (Proceeds of Crime) (Bailiwick of


vv Order in Council No. XXXIV of 1994; there are amendments not material to this enactment. ww Order in Council No. III of 2005; amended by the Government of Alderney (Amendment) Law, 2010 (No. XXII of 2010); the Government of Alderney (Amendment) Law, 2012 (No. XI of 2012); and the Government of Alderney (Amendment) Law, 2013 (No. V of 2014).

282

(c) the Drug Trafficking (Bailiwick of Guernsey) Law, 2000,

(d) the Terrorism and Crime (Bailiwick of Guernsey) Law,

2002,

(e) the Disclosure (Bailiwick of Guernsey) Law, 2007, or

(f) any other enactment prescribed for the purposes of this

Law by regulations of the Committee,

"appointed person" : see section 26(1);

"appropriate Court" : see sections 11(13), 24(14) and 48(6),

"approved supervised role" : see section 12(1),

"associate", in relation to any person, means –

(a) the spouse, civil partner or child of that person,

(b) a person with whom that person is living as if they were

married or civil partners (a "cohabitant"),

(c) any body of which that person is a director,

(d) any person who is an employee or partner (or fellow

member, in the case of a limited liability partnership) of

that person,

283

(e) if that person is a company –

(i) any director or employee of that company,

(ii) any subsidiary of that company, and

(iii) any director or employee of any such subsidiary,

(f) where that person is an unincorporated body, any

director of that body,

(g) if that person has with any other person an agreement

or arrangement as to the acquisition, holding or disposal

of shares or other interests in a company or under which

they undertake to act together in exercising their voting

power (whether in general meeting or otherwise) in

relation to a company, that other person,

Provided always that the Committee may by regulation amend the definition

of "associate",

"associated company" means a company of a description set out in

paragraph (d) of the definition of "associated party,

"associated party", in relation to any person, means -

(a) any person who is a partner (or fellow member, in the

case of a limited liability partnership) of that person,

284

(b) any body of which that person is a controller,

(c) any body of which that person is a director,

(d) any body in respect of which that person holds a

supervised role,

(e) where that person is a company -

(i) a holding company, subsidiary or related

company of that person,

(ii) a subsidiary or related company of a holding

company of that person,

(iii) a holding company of a subsidiary of that

person, or

(iv) a company in the case of which a shareholder

controller of that person, alone or with

associates, is entitled to exercise, or control the

exercise of, more than 50% of the voting power

(whether in general meeting or otherwise),

and where, under the above provisions, any person or entity is an associated

party in relation to another person or entity, then that other person or entity is

an associated party in relation to that first-mentioned person or entity:


285

of "associated party",

"auditor" means -

(a) a person who is qualified for appointment as an auditor

pursuant to section 260 (as read in conjunction with any

Ordinance under section 533) of the Companies

(Guernsey) Law, 2008xx and who is, where required by

or under the provisions of this Law, approved by the

Commission to audit the accounts of licensed

fiduciaries, or

(b) any other person who performs or has performed the

functions of an auditor of a licensed fiduciary,

"Bailiff" means the Bailiff, Deputy-Bailiff, Judge of the Royal Court,

Lieutenant-Bailiff or Juge Délégué,

"Bailiwick" means the Bailiwick of Guernsey,

"Bailiwick body" means -

(a) a Guernsey body, being -

(i) a Guernsey company,

xx Order in Council No. VIII of 2008; there are amendments not material to this enactment.

286

(ii) any other legal person registered, constituted or

incorporated in Guernsey (including for the

avoidance of doubt a Guernsey limited liability

partnership, a Guernsey limited partnership

with legal personality and a Guernsey

foundation), or

(iii) an unincorporated body whose principal place

of business is in Guernsey,

(b) an Alderney body, being -

(i) an Alderney company, or

(ii) an unincorporated body whose principal place

of business is in Alderney,

(c) a Sark body, being any body, other than one mentioned

in paragraph (a)(i) or (ii) or (b)(i), whose principal place

of business is in Sark,

“Banking Supervision Law” means the Banking Supervision

(Bailiwick of Guernsey) Law, 2018yy,

"body" includes a company, any other legal person and an

unincorporated body,

yy Approved by the States of Deliberation on the ** 2018.

287

"business day" means any day other than -

(a) a Saturday, a Sunday, Christmas Day and Good Friday,

(b) a day appointed as a public holiday -

(i) in relation to the Bailiwick excluding the islands

of Alderney and Sark, by Ordinance of the States

of Deliberation under section 1(1) of the Bills of

Exchange (Guernsey) Law, 1958zz,

(ii) in relation to the island of Alderney, by

Ordinance of the States of Alderney under the

said section 1(1) or under paragraph (o) of

Schedule 2 to the Government of Alderney Law,

2004aaa,

(iii) in relation to the island of Sark, by Ordinance of

the Chief Pleas of Sark under the said section

1(1),

"by way of business" : see subsection (3),

zz Ordres en Conseil Vol. XVII, p. 384; there are amendments not material to this enactment. aaa Order in Council No. III of 2005; there are amendments not material to this enactment.

288

"capital base", in relation to a licensed fiduciary, means the capital base

determined by the Commission after consultation with the licensed fiduciary;

and any such determination may be varied from time to time,

"chief executive", in relation to a body, means a person who, alone or

jointly with other persons, is responsible under the immediate authority of the

directors or partners (or general partners, in the case of a limited partnership,

or members, in the case of a limited liability partnership) for the conduct of the

business of the body and, in relation to a body whose principal place of

business is outside the Bailiwick, includes a person who, alone or jointly with

other persons, is responsible for the conduct of its business in the Bailiwick,

"child" includes a stepchild, an adopted child and an illegitimate child,

"civil partner" means a person who has registered as the civil partner

of another person under the Civil Partnership Act 2004, or who is treated under

that Act as having formed a civil partnership by virtue of having registered an

overseas relationship within the meaning of that Act, and whose civil

partnership, or registered overseas relationship, has not been dissolved or

annulled, and "civil partnership" shall be construed accordingly,

"clients", in relation to any person, means –

(a) persons who have entered into or may enter into

agreements for the provision of services by that person

when carrying on by way of business any regulated

activities, or

(b) persons who have received or may reasonably expect to

289

receive the benefit of services provided or arranged or

to be provided or arranged by that person when

carrying on by way of business any regulated activities,

"close relative" of a person means –

(a) his spouse, civil partner or co-habitant,

(b) his children, parents, step-parents, brothers, sisters,

half-brothers, half-sisters, stepbrothers and stepsisters,

and

(c) the spouse, civil partner or co-habitant of any person

within paragraph (b),

"co-habitant" : see paragraph (b) of the definition of "associate",

"Commission" means the Guernsey Financial Services Commission

established by the Financial Services Commission Law,

the "Committee" means the States of Guernsey Policy and Resources

Committee or such other committee as the States may specify by Ordinance;

"committee" of the States of Guernsey, States of Alderney or Chief

Pleas of Sark means any committee, council, department, authority, board or

like body thereof, however called,

"company" means a body corporate, of whatever description,

incorporated with or without limited liability in any part of the world,

290

"compliance officer" means an officer, appointed by a licensed

fiduciary or by another person or entity, with responsibility, under the terms

of his appointment, for independently monitoring, and reporting to the

directors, partners (or general partners, in the case of a limited partnership, or

members, in the case of a limited liability partnership) or chief executive on

and providing guidance and making recommendations in respect of -

(a) compliance by that licensed fiduciary, person or entity

with -

(i) the provisions of this Law, the Financial Services

Commission Law and the regulatory Laws,

(ii) any prohibition, restriction, condition,

obligation, enforcement requirement, other


imposed, issued or arising under any such

provision, and

(iii) its policies and procedures relating to corporate

governance, ethics and standards of conduct,

and

(b) fulfilment by that licensed fiduciary, person or entity, or

by any person who is or is to be the holder of a

supervised role in respect of, or an officer or employee

of, that licensed fiduciary, person or entity, of the

applicable minimum criteria for licensing,

291

"contract of employment" means a contract of service or

apprenticeship, or a contract personally to execute any work or labour,

whether express or implied and whether written or oral,

"contravention" includes failure to comply,

"controller", in relation to a body, means -

(a) a managing director or chief executive of that body or

(where that body is a company) of any other company

of which that body is a subsidiary,

(b) a shareholder controller or an indirect controller,

(c) any person who has the power, alone or with another,

to appoint or remove a director of a board or a member

of the committee or other similar governing body of that

body or (where that body is a company) of any other

company of which that body is a subsidiary,

"Court of Appeal" means the Court of Appeal established under the

Court of Appeal (Guernsey) Law, 1961bbb;

"Court of the Seneschal" means the Court of the Seneschal of Sark,

bbb Ordres en Conseil Vol. XVIII, p. 315; there are amendments not material to this enactment.

292

“directed person” : see section 11(1),

"director", in relation to a body, includes any person who occupies the

position of or fulfils the role of director, by whatever name called, and also

includes the chief executive and any member of the committee or other similar

governing body,

"documents" includes information stored or recorded in any form

(including, without limitation, in electronic form) and -

(a) in relation to information stored or recorded otherwise

than in legible form, references to its production,

however expressed, include (without limitation)

references to the production of a copy of the information

in a form -

(i) in which it can be taken away, and

(ii) in which it is visible and legible or from which it

can readily be produced in a visible and legible

form,

(b) without prejudice to paragraph (a), references to the

production of documents, howsoever expressed,

include (without limitation) references to the

production of a copy thereof in the English language:


of "document",

293

"electronic address" : see section 48(1)(ii),

"electronic form", in relation to the electronic storage or recording of

information or documents, includes storage or recording by means of any form

of information storage technology,

"electronic means", in relation to the sending of a document, includes

any technology by which the document is -

(a) sent and received at its destination by means of

electronic equipment for the processing (which

expression includes, without limitation, digital

compression) or storage of data, and

(b) entirely transmitted and received by wire, by radio or

by electrical, magnetic, wireless, optical, digital or

electromagnetic means:

Provided always that the Committee may by regulation amend the definitions

of "electronic address", "electronic form" and "electronic means",

"employee" means an individual who has entered into or who works

under (or, where the employment has ceased, who worked under) a contract

of employment,

"enactment" includes any Law, Ordinance and subordinate legislation,

"Enforcement Powers Law" means the Financial Services Business

294

(Enforcement Powers) (Bailiwick of Guernsey) Law, 2018,

"enforcer", in relation to a trust, means a person other than a trustee

who is appointed under the terms of the trust and who has the fiduciary duty

to enforce the trust in relation to its non-charitable purposes,

"entity" includes a scheme, trust, structure, arrangement and cell of a

protected cell company,

"equity share capital" means, in relation to a company, its issued share

capital excluding any part thereof which, as respects neither dividends nor

capital, carries any right to participate beyond a specified amount in a

distribution,

"established place of business", in relation to a body, and without

limitation, does not include an office in the Bailiwick at which is transacted

only such administrative business as is necessary to enable that body to

comply with the requirements of the Companies (Guernsey) Law, 2008, the

Companies (Alderney) Law, 1994, the Partnership (Guernsey) Law, 1995, the

Limited Partnerships (Guernsey) Law, 1995, the Limited Liability Partnerships

(Guernsey) Law, 2013, the Foundations (Guernsey) Law, 2012, or any

corresponding legislation in force in any jurisdiction outside the Bailiwick,

“exercise”, or “control the exercise of” voting power : for the purposes

of this Law a person becomes entitled to exercise or control the exercise of

voting power where he, by any means whatsoever -

(a) becomes entitled to do so as a member of a body, or

295

(b) acquires any interest which may entitle him to be a

member of, or otherwise to exercise or control the

exercise of voting power of, that body,

"fiduciary licence" means a full fiduciary licence, secondary fiduciary

licence or personal fiduciary licence granted by the Commission under section

6,

"Financial Services Commission Law" means the Financial Services

Commission (Bailiwick of Guernsey) Law, 1987ccc,

"former licensed fiduciary" means a person who –

(a) does not hold and is not deemed to hold a fiduciary

licence, but

(b) has previously held such a licence,

"foundation" means -

(a) a Guernsey foundation, or

(b) an equivalent or similar body created or established

under the law of another jurisdiction (and however

named),

ccc Ordres en Conseil Vol. XXX, p. 243; there are amendments not material to this enactment.

296

"foundation official" means -

(a) in relation to a Guernsey foundation, a foundation

official within the meaning of the Foundations

(Guernsey) Law, 2012ddd, and

(b) in relation to an equivalent or similar body created or

established under the law of another jurisdiction, a

person with functions corresponding to those of a

foundation official described in paragraph (a),

"full fiduciary licence" : see section 4,

"functions" includes duties, powers and privileges,

"functions" of the Commission means its general functions, statutory

functions [and primary objectives] within the meaning of the Financial Services

Commission Law,

"general partner" means -

(a) in relation to a Guernsey limited partnership, a general

partner within the meaning of the Limited Partnerships

(Guernsey) Law, 1995eee, and

ddd Order in Council No. I of 2013. eee Order in Council No. XII of 1995; there are amendments not relevant to this enactment.

297

(b) in relation to a limited partnership falling within

paragraph (b) of the definition of "limited partnership",

a person whose liability for, and functions in relation to,

the partnership correspond to those of a general partner

described in paragraph (a),

"gratuity scheme" means a scheme (not being a fund, contract, scheme

or trust described in paragraph (a), (b) or (c) of the definition of "pension

scheme" below) which is established in connection with the carrying on of

business or the exercise of functions and which has, for its sole or main

purpose, the purpose of the provision of retirement benefits by means of the

provision of a lump sum or other payments for persons employed in or in

connection with the business or the exercise of the functions (or their spouses,

children, dependants or other persons in respect of them), at a time or occasion

(including, without limitation, the expiration of their term of service), or on the

occurrence of an event or circumstance, or on compliance with requirements

or conditions, specified in the rules of the scheme,


of "gratuity scheme",

"group", in relation to a company, means that company, any other

company which is its holding company or subsidiary and any other company

which is a subsidiary of that holding company,

"group entity" means a body or entity carrying on regulated activities

and which is not a licensed fiduciary but which is part of a group containing a

licensed fiduciary,

298

"Guernsey company" means a company registered in the Register of

Companies within the meaning of section 496 of the Companies (Guernsey)

Law, 2008fff,

"Guernsey foundation" means a foundation established under the

Foundations (Guernsey) Law, 2012,

"Guernsey limited liability partnership" means a limited liability

partnership registered under the Limited Liability Partnerships (Guernsey)

Law, 2013ggg,

"Guernsey limited partnership" means a limited partnership which is

registered as a limited partnership, and in respect of which there is a valid

certificate of registration, under the Limited Partnerships (Guernsey) Law,

1995 (whether with or without legal personality),

"Her Majesty's Procureur" includes Her Majesty's Comptroller,

"holding company" : see Schedule 2,

"Income Tax Law" means the Income Tax (Guernsey) Law, 1975hhh,

fff Order in Council No. VIII of 2008; there are amendments not material to this enactment. ggg Order in Council No. VI of 2014. hhh Ordres en Conseil Vol. XXV, p. 124; there are amendments not material to this enactment.

299

"indirect controller", in relation to a body, means a person in

accordance with whose directions or instructions -

(a) any director of that body,

(b) where that body is a company, any director of any other

company of which that body is a subsidiary, or

(c) any controller of that body,

is accustomed to act, and includes a person who has a holding in that body (or,

where that body is a company, in any other company of which that body is a

subsidiary) directly or indirectly which makes it possible to exercise significant

influence over the management of the body,

"information" includes, for the avoidance of doubt, a signature,

"inspected person" : see section 27(4),

"Insurance Business Law" means the Insurance Business (Bailiwick of


"Insurance Managers and Intermediaries Law" means the Insurance

Managers and Insurance Intermediaries (Bailiwick of Guernsey) Law, 2002,

"international agreement" means -

(a) any convention, treaty, protocol, memorandum or other

300

international instrument, or any provision contained in

or arising under it, and

(b) any Community provision within the meaning of

section 3(1) of the European Communities

(Implementation) (Bailiwick of Guernsey) Law, 1994iii,

whether or not binding upon the Bailiwick or any part thereof, and includes

any right, power, liability, obligation, prohibition or restriction created or

arising, or any remedy or procedure provided for, by or under any such

international agreement,

"internet or telecommunications service provider" means a person

who provides a service that consists of –

(a) the emission, transmission, switching, conveyance or

reception over a telecommunications system of

information (including, without limitation, anything

falling within paragraphs (a) to (e) of the definition of

the expression "telecommunications system") provided

by another person, or

(b) the provision of access to a telecommunications system,

"investment company" : see [section 44(1)] of the Protection of

Investors Law,

iii Order in Council No. III of 1994.

301

"jurisdiction" includes any country, territory or other place,

"lawyer" means an advocate or –

(a) a member of the Bar of England and Wales, the Bar of

Northern Ireland or the Faculty of Advocates in

Scotland,

(b) a Solicitor of the Supreme Court of England and Wales,

of the Supreme Court of Judicature of Northern Ireland

or in Scotland, or

(c) a person of any other class or description specified by


“legal professional privilege”, and communications or items subject

thereto : see section 24 of the Police Powers and Criminal Evidence (Bailiwick

of Guernsey) Law, 2003jjj,

"licensed banking institution" means an institution which is a licensed

institution within the meaning of the Banking Supervision Law (that is, an

institution which holds or which is deemed to hold a banking licence under

that Law),

"licensed fiduciary" means a person who holds a fiduciary licence,

jjj Ordres en Conseil Vol. XLIII, p. 617; there are amendments not material to this enactment.

302

"limited liability partnership" means -

(a) a Guernsey limited liability partnership, or

(b) an entity formed under the laws of a jurisdiction outside

Guernsey, being an entity corresponding to a Guernsey

limited liability partnership,

"limited partner" means -

(a) in relation to a Guernsey limited partnership, a limited

partner within the meaning of the Limited Partnerships

(Guernsey) Law, 1995kkk, and

(b) in relation to a limited partnership falling within

paragraph (b) of the definition of "limited partnership",

a person described in paragraph (b)(ii) of that definition,

"limited partnership" means –

(a) a Guernsey limited partnership, or

(b) an arrangement entered into under the laws of a

jurisdiction outside Guernsey between two or more

persons, under which –

kkk Order in Council No. XII of 1995; there are amendments not relevant to this enactment.

303

(i) one or more of them is, or are jointly and

severally, liable without limitation for all debts

and obligations to third parties incurred

pursuant to the arrangement, and

(ii) the others (referred to in this Law as "limited

partners") have, by whatever means,

contributed or agreed to contribute specified

amounts pursuant to the arrangement and are

not liable for those debts and obligations (unless

they participate in controlling the business or are

otherwise subjected to a greater liability by those

laws in specified circumstances) beyond the

amount contributed or agreed to be contributed,

whether with or without legal personality,

“liquidator” includes any person conducting a dissolution or winding

up and a receiver, administrator and administration manager,

"member", in respect of -

(a) a Guernsey company, has the same meaning as in the

Companies (Guernsey) Law, 2008lll,

lll Order in Council No. VIII of 2008; there are amendments not material to this enactment.

304

(b) an Alderney company, has the same meaning as in the

Companies (Alderney) Law, 1994, and

(c) a Guernsey limited liability partnership, has the

meaning given by section 114(1) of the Limited Liability

Partnerships (Guernsey) Law, 2013,

"minimum criteria for licensing" means the minimum criteria as to

integrity and skill, fitness and propriety, and other matters, specified in the

provisions of Schedule 1,

"money laundering compliance officer" means the money laundering

compliance officer appointed in accordance with **** [insert relevant cross

reference],

"money laundering reporting officer" means the money laundering

reporting officer appointed in accordance with regulation 12(a) of the Criminal

Justice (Proceeds of Crime) (Financial Services Businesses) (Bailiwick of

Guernsey) Regulations, 2007,

"notified supervised role" : see section 12(3),

"officer", in relation to a company, includes a director, liquidator,

manager and secretary thereof,

"officer of police" means a member of the salaried police force of the

Island of Guernsey, any officer within the meaning of section 1(1) of the

Customs and Excise (General Provisions) (Bailiwick of Guernsey) Law, 1972

and –

305

(a) in relation to Guernsey, Herm and Jethou, and within

the limits of his jurisdiction, a member of the special

constabulary of the Island of Guernsey,

(b) in relation to Alderney -

(i) a member of any police force which may be

established by the States of Alderney, and

(ii) within the limits of his jurisdiction, a special

constable appointed under section 47 of the

Government of Alderney Law, 2004mmm,

(c) in relation to Sark -

(i) the Constable, an Assistant Constable and the

Vingtenier, and

(ii) within the limits of his jurisdiction, a special

constable appointed under section 54 of the

Reform (Sark) Law, 2008,

"ordinary members of the Commission" means the members of the

Commission other than the Chairman,

mmm Order in Council No. III of 2005; there are amendments not material to this enactment.

306

"other supervised manager" : see section 12(3),

"partner" has the same meaning as in the Partnership (Guernsey) Law,

1995nnn, and includes a general partner and a limited partner of a limited

partnership,

"partnership" : see section 1 of the Partnership (Guernsey) Law, 1995,

"pension scheme" means any fund, contract, scheme or trust -

(a) approved by the Director of Income Tax under section

150, 154A, 157A or 157E of the Income Tax Law,

(b) established in Guernsey and recognised by the Director

of Income Tax as being exempt from tax under section

40(o) of the Income Tax Law,

(c) any annuity or lump sum payable pursuant to which is

recognised by the Director of Income Tax as being

exempt from tax under section 40(ee) of the Income Tax

Law,

Provided always that the Committee may by regulation amend the definitions

of "pension scheme",

"person" includes -

nnn Ordres en Conseil Vol. XXXVI, p. 179; there are amendments not material to this enactment.

307

(a) an individual,

(b) a company,

(c) any other legal person, and

(d) an unincorporated body,

"personal fiduciary licence" : see section 4,

"Policy and Finance Committee of the States of Alderney" : see

subsection (2),

"Policy and Performance Committee of the Chief Pleas of Sark" : see

subsection (2),

"protected cell company" means a company incorporated as, or

converted into, a protected cell company in accordance with the provisions of

the Companies (Guernsey) Law, 2008,

"Protection of Investors Law" means the Protection of Investors

(Bailiwick of Guernsey) Law, 2018ooo,

"protector", in relation to a trust, means a person other than a trustee

who, as the holder of an office created by the terms of the trust, is authorised

ooo Approved by the States of Deliberation on the ** 2018.

308

or required to participate in the administration of the trust,

the "provisions of" this Law or any other enactment include the

provisions of -

(a) any Ordinance or subordinate legislation, or any code,

guidance, principles, policies or instructions, made or

issued under this Law or that other enactment (as the

case may be), and

(b) any subordinate legislation, or any code, guidance,

principles, policies or instructions, made or issued

under any such Ordinance or subordinate legislation,

(and see also the definition below of the "purposes of" this Law or any other

enactment),

"public" means the public, including any section of the public, however

selected, in the Bailiwick or elsewhere, and includes, for the avoidance of

doubt and without limitation, clients and potential clients (whether of any

person or entity, or of any particular, or any particular class or description of,

person or entity) and, in relation to a body, a section consisting of, or consisting

of a section of, members, debenture holders or clients of, in or with that body,

the "purposes of" this Law or any other enactment include the

purposes of all or any of the provisions of this Law or that other enactment, as

the case may be (and see also the definition above of the "provisions of" this

Law or any other enactment),

309

"qualifying capital interest" : see the definition of “related company”

below,

"recovery plan" means a plan, in such form and containing such

information as may be determined by the Commission and as may be

necessary or desirable in the interests of the public or the reputation of the

Bailiwick as a finance centre, addressing corrective action necessary in respect

of existing or potential regulatory or supervisory concerns from time to time

raised by the Commission (including, without limitation, action necessary to

demonstrate a return to solvency from insolvency),

"Registrar of Companies" means the holder for the time being of the

office established under section 495(1) of the Companies (Guernsey) Law,

2008ppp,

"regulated activity" : see section 2,

"regulatory Laws" means –

(a) the Protection of Investors Law,

(b) the Banking Supervision Law,

(c) the Insurance Business Law,

(d) the Insurance Managers and Intermediaries Law,

ppp Order in Council No. VIII of 2008; there are amendments not material to this enactment.

310

(e) the Financial Services Commission Law,

f) the Registration of Non-Regulated Financial Services

Businesses (Bailiwick of Guernsey) Law, 2008,

(g) the Prescribed Businesses (Bailiwick of Guernsey) Law,

2008,

(h) the Enforcement Powers Law,

(i) any other enactment prescribed for the purposes of this

Law by regulations of the Committee,

"related company", in relation to the company in question, means any

company (other than one which is a group company in relation to the company

in question) in which the company in question holds for a significant period a

qualifying capital interest for the purpose of securing a contribution to the

company in question's own activities by the exercise of any control or influence

arising from that interest; and for the purposes of this Law -

(a) a "qualifying capital interest" means, in relation to any

company, an interest in shares comprised in the equity

share capital of that company of a class carrying rights

to vote in all circumstances at general meetings of that

company,

(b) where -

311

(i) a company holds a qualifying capital interest in

another company, and

(ii) the nominal value of any relevant shares in that

other company held by the first-mentioned

company is equal to 20% or more of the nominal

value of all relevant shares in that other

company,

the first-mentioned company shall be presumed to hold

that interest on the basis and for the purpose mentioned

above under "related company", unless the contrary is

shown, and

(c) in paragraph (b)(ii) "relevant shares" means, in relation

to any company, any such shares in that company as are

mentioned in paragraph (a):

Provided always that the Commission [or PRC] may by regulation amend the

definitions of "related company", "qualifying capital interest" and "relevant

shares",

"relevant electronic address" : see section 48(1)(iii),

"relevant document" : see section 35(p),

"relevant person" : see section 25(1),

"relevant supervisory authority" means -

312

(a) an authority performing in a jurisdiction outside the

Bailiwick -

(i) functions corresponding to any functions of the

Commission, or

(ii) such other functions as the Committee may by

regulation prescribe,

including functions in respect of the Bailiwick,

(b) any international organisation, that is to say, any

organisation, community or body -

(i) of which the United Kingdom or any other

sovereign power is a member, or

(ii) which is established under any international

agreement, or

(c) a self-regulatory organisation,

"Royal Court" means the Royal Court sitting as an Ordinary Court, and

for the purposes of this Law -

(a) the Royal Court is constituted by the Bailiff sitting

unaccompanied by the Jurats, and

313

(b) the Royal Court may appoint one or more assessors to

assist it in the determination of any matter before it,

"secondary fiduciary licence" : see section 4,

"self-regulatory organisation" means an organisation, including a

security market and stock exchange, performing in the Bailiwick or any other

jurisdiction -

(a) licensing or other authorisation functions to enable

persons to carry on any activities which in that

jurisdiction may only lawfully be carried on with the

authorisation of the organisation concerned, or

(b) regulatory or supervisory functions subject to which

any activities in that jurisdiction are carried on,

or such other functions as the Committee may by regulation prescribe, and in

paragraphs (a) and (b) "activities" includes the practising of any profession,

"servant" includes a person working under a contract for services and

an employee,

"shareholder controller" -

(a) in relation to a body, and subject to the provisions of

paragraph (b), means a person who, alone or with

associates, is entitled to exercise, or control the exercise

of, 15% or more of the voting power (whether in general

314

meeting or otherwise) of that body or (where that body

is a company) of any other company of which that body

is a subsidiary,

(b) in relation to a protected cell company, means a person

who, alone or with associates, beneficially owns 15% or

more of the cell shares issued in respect of any cell of

that company,

"significant shareholder", in relation to a body (other than a licensed

banking institution incorporated in a jurisdiction outside the Bailiwick), means

a person who, alone or with associates, is entitled to exercise, or control the

exercise of, 5% or more but less than 15% of the voting power (whether in

general meeting or otherwise) of that body or (where that body is a company)

of any other company of which that body is a subsidiary,

"skilled person" : see section 27(1),

"special purpose vehicle" means a body or entity created solely for the

purposes of -

(a) a particular financial transaction or series of financial

transactions, or

(b) the holding and/or lending of assets,

"States" means the States of Deliberation;

"subordinate legislation" means any regulation, rule, order, rule of

315

court, resolution, scheme, byelaw or other instrument made under any

statutory, customary or inherent power and having legislative effect, but does

not include an Ordinance,

"subsidiary company" : see Schedule 2 (and "subsidiary" has the same

meaning),

"supervised body" is –

(a) a body –

(i) which is a licensee within the meaning of the

Protection of Investors Law or which is exempt

from licensing under [section 29] of that Law, or

(ii) which holds an authorisation or registration

under [section 8] of that Law,

(b) a body which is a licensee within the meaning of the

Insurance Business Law,

(c) a body which is a licensee within the meaning of the

Insurance Managers and Intermediaries Law,

(d) a body which is a licensed banking institution, or

(e) a body which is of any other class or description

prescribed for the purposes of this section by


316

"supervised role" means an approved supervised role, a notified

supervised role or a vetted supervised role,

"telecommunications system" means a system for the emission,

transmission, switching, conveyance or reception through the agency of

electric, magnetic, electro-magnetic, electro-chemical, electro-mechanical or

electro-optical energy or by optic-electronic means, of –

(a) speech, music or other sounds,

(b) electronic mail, data or signals,

(c) writing or visual images or video or any combination of

them,

(d) signals serving for the impartation (whether as between

persons and persons, things and things or persons and

things) of any matter otherwise than in the form of

sounds or visual images, or

(e) signals serving for the actuation or control of machinery

or apparatus,

"transmitted" : see section 48(1)(iv),

"trust" means the legal relationship that exists (by whatever name)

where a person (the "trustee") holds or has vested in him or is deemed to hold

or have vested in him any property which does not form, or which has ceased

317

to form, part of his own estate –

(a) for the benefit of another person, whether or not yet

ascertained or in existence, or

(b) for any purpose which is not for the benefit only of the

trustee,

and the expression "trust" includes a trust and any equivalent or similar

structure or arrangement, whether established in or under the laws of the

Bailiwick or elsewhere and howsoever named,

"uniform scale" means the uniform scale of fines for the time being in

force under the Uniform Scale of Fines (Bailiwick of Guernsey) Law, 1989qqq,

"vetted supervised role" : see section 12(2).

(2) Unless the contrary intention appears, references in the

provisions of this Law to –

(a) the Policy and Finance Committee of the States of

Alderney, and

(b) the Policy and Performance Committee of the Chief

Pleas of Sark,

qqq Ordres en Conseil Vol. XXXI, p. 278.

318

are references to the committees of those islands for the time being performing the

functions respectively conferred by or under the provisions of this Law on those

committees.

(3) For the purposes of this Law a person who carries on any

activity shall be deemed to do so by way of business if he receives any income, fee,

emolument or other consideration in money or money's worth for doing so.

(4) Unless the contrary intention appears, any reference in this Law

to an enactment is a reference thereto as from time to time amended, re-enacted (with

or without modification), extended or applied.

(5) In this Law –

(a) words importing the neuter gender include the

masculine and the feminine, and

(b) words importing the masculine gender include the

feminine and the neuter.

(6) The [Interpretation (Guernsey) Law, 2016rrr] applies to the

interpretation of this Law throughout the Bailiwick.

(7) The States may by Ordinance amend this section by adding any

definition to it or by removing or varying any definition set out in it.

rrr Order in Council No. ** of 2018.

319

(8) Subsection (7) is without prejudice to any other power to enact

Ordinances or subordinate legislation conferred by the provisions of this Law.

Savings and transitional provisions. [to be completed]

60. (1)

Conversion of full fiduciary licence into secondary fiduciary licence.

61. (1) The Commission may by rules make such provision as they

think fit in respect of the conversion, whether -

(a) on the application of the licensed fiduciary, or

(b) of the Commission's own motion and with the

agreement of the licensed fiduciary,

of a full fiduciary licence or any class or description thereof into a secondary fiduciary

licence.

(2) Where a full fiduciary licence is converted into a secondary

fiduciary licence pursuant to rules under subsection (1) -

(a) the licensed fiduciary concerned shall be deemed -

(i) to have been granted a secondary fiduciary

licence by the Commission under section 6, and

(ii) to be the holder of a secondary fiduciary licence

subject to the same conditions to which the full

fiduciary licence was subject, and

320

(b) the licence shall be deemed to be a secondary fiduciary

licence granted by the Commission under section 6,

and the provisions of this Law shall apply accordingly.

Repeals and amendments. [to be completed]

60. (1) The following enactments or provisions of enactments are

repealed -

(a) the Regulation of Fiduciaries, Administration

Businesses and Company Directors, etc (Bailiwick of

Guernsey) Law, 2000sss,

(b) ****

Citation and commencement.

62. (1) This Law may be cited as the Regulation of Fiduciaries,

Administration Businesses and Company Directors, etc (Bailiwick of Guernsey) Law,

sss No. I of 2001 (Ordres en Conseil Vol. XLI, p. 13); as amended by No. XIV of 2003; No. XVI of 2007; No. VIII of 2008; No. XXV of 2008; No. XIII of 2010; No. XVIII of 2010; No. I of 2013; Ordinance No. XXXVII of 2001; Ordinance No. XXXIII of 2003; Ordinance No. VII of 2009; Ordinance No. XII of 2015; Ordinance No. XXXIX of 2015; Ordinance No. II of 2016; Ordinance No. IX of 2016; the Transfer of Funds (Alderney) Ordinance, 2017 (Alderney Ordinance No. ** of 2017); the Transfer of Funds (Guernsey) Ordinance, 2017 (No. ** of 2017); the Transfer of Funds (Sark) Ordinance, 2017 (Sark Ordinance No. X of 2017); G.S.I. No. 3 of 2008; G.S.I. No. 83 of 2010; G.S.I. No. 4 of 2013; and the Regulation of Fiduciaries, Administration Businesses and Company Directors, etc. (Bailiwick of Guernsey) (Pensions Amendment) Regulations, 2017. See also the Government of Alderney Law, 2004 (No. III of 2005); Ordinance No. XXXIII of 2009; Ordinance No. XX of 2015; G.S.I. No. 81 of 2016.

321

20002018.

(2) This Law shall come into force on the day appointed by

Ordinance of the States; and different days may be appointed for different provisions

or different purposes.

322

SCHEDULE 1

MINIMUM CRITERIA FOR LICENSING.

Integrity and skill.

1. (1) The business of the applicant or licensed fiduciary is or, in the

case of a person who is not yet carrying on a regulated activity, will be carried on –

(a) with prudence and integrity,

(b) with professional skill appropriate to the nature and

scale of his activities, and

(c) in a manner which will not tend to bring the Bailiwick

into disrepute as an international finance centre.

(2) In conducting his business, the applicant or licensed fiduciary

shall at all times act in accordance with the following documents issued by the

Commission –

(a) the Principles of Conduct of Finance Business, and

(b) any rules, codes, guidance, principles, policies and

instructions issued from time to time under the

provisions of this Law and under any other enactment

as may be applicable to him.

Economic benefit.

2. ...

323

Fit and proper persons.

3. (1) The applicant or licensed fiduciary is a fit and proper person to

hold a fiduciary licence and, in the case of a full fiduciary licence or secondary

fiduciary licence, every person who is, or is to be, a director, controller, or partner (or

general partner, in the caseholder of a limited partnership, or member, in the case of

a limited liability partnership) or managersupervised role in respect of the applicant

or licensed fiduciary, is a fit and proper person to hold that position.

(2) In determining whether a person is a fit and proper person to

hold a fiduciary licence or a particular position, regard shall be had to –

(a) his probity, competence, experience and soundness of

judgement for fulfilling the responsibilities of a licensed

fiduciary or (as the case may be) of that position,

(b) the diligence with which he is fulfilling or likely to fulfil

those responsibilities,

(c) whether the interests of clientsthe public or the

reputation of the applicant or licensed

fiduciaryBailiwick as a finance centre are, or are likely

to be, in any way threatenedjeopardised by his holding

a fiduciary licence or that position,

(d) his educational and professional qualifications, his

membership of professional or other relevant bodies

and any evidence of his continuing professional

education or development,

324

(e) his knowledge and understanding of the legal and

professional obligations to be assumed or undertaken,

(f) his policies, procedures and controls for the vetting of

clients and his record of compliance with any provision

contained in or made underthe provisions of –

(i) the Criminal Justice (Fraud Investigation)

(Bailiwick of Guernsey) Law, 1991,

(i) the appointed Laws,

(ii) the Criminal Justice (Proceeds of Crime) (Bailiwick of


(iii) the Drug Trafficking (Bailiwick of Guernsey) Law, 2000,

(iv) the Terrorism and Crime (Bailiwick of Guernsey) Law,

2002,

(v) the Disclosure (Bailiwick of Guernsey) Law,

2007,

(vi) the Transfer of Funds (Guernsey) Ordinance,

20072017, the Transfer of Funds (Alderney)

Ordinance, 20072017 and the Transfer of Funds

(Sark) Ordinance, 20072017,

(viaiii) the Single Euro Payments Area (Guernsey)

325

Ordinance, 2016,

(vii(iv) the Beneficial Ownership of Legal Persons

(Guernsey) Law, 2017,

(v) the Beneficial Ownership of Legal Persons

(Alderney) Law, 2017,

(vi) any legislation implementing European

CommunityUnion or United Nations sanctions

and applicable in the Bailiwick, or

(viiivii) any other enactment prescribed for the purposes

hereofof this Law by regulation of the

CommissionCommittee, and

(g) his record of compliance with any provision contained

in or made underthe provisions of the Companies

(Guernsey) Law, 2008 in acting as a corporate services

provider or a resident agent within the meaning of that

Law,

(h) his record of compliance with any provision contained

in or made underthe provisions of the Foundations

(Guernsey) Law, 2012 in acting as a foundation official

or a resident agent within the meaning of that Law,

(i(i) his record of compliance with the provisions of the

Limited Liability Partnerships (Guernsey) Law, 2013 in

326

acting as a corporate services provider or a resident

agent within the meaning of that Law,

(j) his policies, procedures and controls to comply with any

rules, codes, guidance, principles, policies and

instructions referenced in paragraph 1(2).

(3) Without prejudice to the generality of the foregoing

provisions,subparagraphs (1) and (2), regard maybe had to the previous conduct and

activities of the person in question and, in particular, to any evidence that he has –

(a) committed any offence, and in particular any offence

involving fraud or other dishonesty or involving

violence,

(b) contravened any provision contained in or made

underof the provisions of –

(i) this Law,


(iii) any enactment relating to money laundering or

terrorist financing (including, for the avoidance

of doubt, any rules, codes, guidance, principles,

policies and instructions and guidance issued by

the Commission in relation thereto), or

(iv) any other enactment appearing to the

327

Commission to be designed for protecting

members of the public against financial loss due

to –

(A) dishonesty, incompetence or malpractice

by persons concerned in the provision of

regulated activities, banking, insurance,

investment or other financial services, or

(B) the conduct of discharged or

undischarged bankrupts or persons who

are otherwise insolvent (including

persons who have- been declared in a

state of "désastre"),

(c) engaged in any business practices (whether unlawful or

not) –

(i) appearing to the Commission to be deceitful or

oppressive or otherwise improper, or

(ii) which otherwise reflect discredit on his method

of conducting business or his suitability to carry

on regulated activities, or

(d) engaged in or been associated with any other business

practices or otherwise conducted himself in such a way

as to cast doubt on his competence and soundness of

judgement.

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(4) For the purposes of this paragraph and for the avoidance of

doubt, -

(a) "conduct and activities" includes any conduct, activity

or omission in any jurisdiction,

(b) "offence" includes an offence under the law of another

jurisdiction which would be an offence in the Bailiwick

if the conduct, activity or omission constituting the

offence occurred in the Bailiwick, and

(c) "enactment" includes any primary or, secondary or

tertiary legislation of any jurisdiction in the British

Islands or elsewhere.

Business to be directed by at least two individuals.

4. (1) In the case of a full fiduciary licence or secondary fiduciary

licence, at least two individuals who are –

(a) resident in the Bailiwick,

(b) of appropriate standing and experience, and

(c) sufficiently independent of each other,

shall effectively direct the business of the applicant or licensed fiduciary.

(2) For the purposes of subparagraph (I1), an individual is

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sufficiently independent of another where, in the opinion of the Commission, that

individual would not be unduly influenced by that other individual.

Composition of board of directors.

4A5. Where the applicant or licensed fiduciary is a company, the board of

directors shall include such number of –

(a) directors with executive responsibility for the

management of itsthe business, and

(b) directors without executive responsibility for the

management of its business,

as the Commission considers appropriate having regard to the circumstances of the

company and the nature and scale of its operations.

Business to be conducted in prudent manner.

56. (1) The applicant or licensed fiduciary conducts or, in the case of a

person who is not yet carrying on a regulated activity, will conduct his business in a

prudent manner.

(2) Without prejudice to subparagraph (1) and subject to the

provisions of subparagraph (4), a personan applicant or licensed fiduciary shall not be

regarded as conducting his business in a prudent manner unless –

(a) he maintains or, as the case may be, will maintain –

(i) a capital base, and

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(ii) insurance cover,

of an amount which the Commission considers

appropriate,

(b) he maintains or, as the case may be, will maintain

adequate liquidity, having regard to –

(i) the relationship between his liquid assets and his

actual and contingent liabilities,

(ii) the times at which those liabilities will or may

fall due and his assets will mature,

(iii) the nature and scale of his operations,

(iv) the risks inherent in those operations and (where

the person is a company) in the operations of any

other company in the same group so far as

capable of affecting the company, and

(v) any other factors appearing to the Commission

to be relevant,

(c) in the case of a full fiduciary licence or secondary

fiduciary licence, he makes or, as the case may be, will

make adequate provision for –

(i) depreciation or diminution in the value of his

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assets (including provision for bad or doubtful

debts),

(ii) liabilities which will or may fall to be discharged

by him, and

(iii) losses which he will or may incur, and

(d) he maintains or, as the case may be, will maintain –

(i) adequate accounting and other records of his

business, and

(ii) adequate systems of control of his business and

records.

(3) Without prejudice to the generality of the foregoing provisions

of this paragraph,subparagraphs (1) and (2), the Commission shall also have regard,

in determining whether a personan applicant or licensed fiduciary is to be regarded

as conducting his business in a prudent manner, to the following –

(a) in the case of a full fiduciary licence or secondary

fiduciary licence, whether the applicant or licensed

fiduciary has staff of adequate number, skills,

knowledge and experience to undertake and fulfil their

duties,

(b) the systems of control and record keeping of the

applicant or licensed fiduciary for business undertaken

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or contemplated and the provision made by him for the

proper maintenance and development of such systems,

(c) the complaints history of the applicant or licensed

fiduciary, and

(d) in the case of a full fiduciary licence or secondary

fiduciary licence, and where the applicant or licensed

fiduciary is a company which is part of a group, whether

the structure or organisation of the group of which the

applicant or licensed fiduciary is a part, hinders

effective supervision.

(4) For the purposes of –

(a) subparagraph 2(a), an appropriate amount is –

(i) an amount commensurate with the nature and

scale of his operations, and

(ii) an amount and nature sufficient to safeguard the

interests of his clients and potential clients,

having regard to –

(A) the nature and scale of his operations,

(B) the risks inherent in those operations and

(where the person is a company) in the

operations of any other company in the

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same group, so far as capable of affecting

the company, and

(C) any other factors appearing to the

Commission to be relevant,

(b) subparagraph 2(b), in considering the liquid assets of a

personan applicant or licensed fiduciary, the

Commission may, to such extent as it thinks

appropriate, take into account –

(i) the assets of the personapplicant or licensed

fiduciary, and

(ii) the facilities which are available to him and

which are capable of providing liquidity within

a reasonable period, and

(c) subparagraph 2(d),

(i) records and systems shall not be regarded as

adequate unless they are such as to enable –

(A) the business of the personapplicant or

licensed fiduciary to be managed

prudently, and

(B) the personapplicant or licensed fiduciary

to comply with the duties imposed on

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him by or under the provisions of this

Law or any enactment listed in

paragraph 3(2)(f), and

(ii) where the personapplicant or licensed fiduciary

is a company, in determining whether those

systems are adequate the Commission shall

(without limitation) have regard to the functions

and responsibilities in respect of them of any of

the company's directors.

Information required by the Commission.

5A7. The applicant, licensed fiduciary and any person who is, or is to be, a

director, controller, or partner (or general partner, in the casethe holder of a limited

partnership, or member, in the case of a limited liability partnership) or

managersupervised role in respect of the applicant or licensed fiduciary, shall supply

such information as the Commission may reasonably require for the purpose of

assessing compliance with the minimum criteria for licensing set out in this Schedule.

Power to make regulations.

68. The Policy Council may, after consultation with the Commission, and

with the agreement of the Policy and Finance Committee of the States of Alderney and

the Policy and Performance Committee of the Chief Pleas of Sark,may make

regulations amending the provisions of this Schedule.

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SCHEDULE 2

MEANING OF "HOLDING COMPANY" AND "SUBSIDIARY COMPANY"

1. For the purposes of this Law a company is, subject to the provisions of

paragraph 3, a subsidiary of another if, but only if –

(a) that other –

(i) is a member of it and controls the composition of

its board of directors, or

(ii) holds more than half in nominal value of its

equity share capital, or

(b) the first-mentioned company is a subsidiary of any

company which is that other's subsidiary.

2. For the purposes of paragraph 1 the composition of a company's board

of directors shall be deemed to be controlled by another company if, but only if, that

other company has some power, exercisable without the consent or concurrence of

any other person, to appoint or remove the holders of all or a majority of the

directorships; and that other company shall be deemed to have power to appoint a

person to any directorship in respect of which any of the following conditions is

satisfied –

(a) that a person cannot be appointed thereto without the

exercise in his favour by that other company of such a

power,

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(b) that a person's appointment thereto follows necessarily

from his appointment as director of that other company,

(c) that the directorship is held by that other company itself

or by a subsidiary of it.

3. In determining whether a company is a subsidiary of another –

(a) any shares held or power exercisable by that other in a

fiduciary capacity shall be treated as not held or

exercisable by it,

(b) subject to paragraphsthe provisions of items (c) and (d),

any shares held or power exercisable –

(i) by any person as a nominee for that other (except

where that other is concerned only in a fiduciary

capacity),

(ii) by, or by a nominee for, a subsidiary of that

other, not being a subsidiary which is concerned

only in a fiduciary capacity,

shall be treated as held or exercisable by that other,

(c) any shares held or power exercisable by any person by

virtue of the provisions of any debentures of the first-

mentioned company or of a trust deedinstrument for

securing any issue of such debentures shall be

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disregarded,

(d) any shares held or power exercisable by, or by a

nominee for, that other or its subsidiary (not being held

or exercisable as mentioned in paragraphitem (c)) shall

be treated as not held or exercisable by that other if the

ordinary business of that other or its subsidiary, as the

case may be, includes the lending of money and the

shares are held or power is exercisable as aforesaid by

way of security only for the purposes of a transaction

entered into in the ordinary course of that business.

4. For the purposes of this Law a company shall be deemed to be another's

holding company if, but only if, that other is its subsidiary.

5. The Policy Council may, after consultation with the Commission, and

with the agreement of the Policy and Finance Committee of the States of Alderney and

the Policy and Performance Committee of the Chief Pleas of Sark,may make

regulations amending the meaning of "holding company" and "subsidiary company"

for the purposes of all or any of the provisions of this LawSchedule.

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